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FCC RethinksOver-the-Top Decision

The FCC has long known it can’t please all the people all the time. And last week, the nation’s largest cable operator found itself on the short end of that axiom.

The FCC Media Bureau stayed its own decision from a little over three months ago and ruled that, at least for now and perhaps for good, overthe- top video distributors (OVDs) who seek access to Comcast/NBCUowned programming do not have to make the terms of their agreements with other programmers available to Comcast’s outside counsel or experts.

Comcast will now have to either trust OVDs when they say terms are or are not comparable, or submit impasses to an outside arbitrator.

In the original Dec. 4 decision, the bureau clarified that “OVDs that invoke the Benchmark Condition must disclose the terms of comparable peer programming agreements to the extent necessary to enable C-NBCU to carry out its obligations under the condition.”

That decision had been in response to Comcast’s request for a complementary clarification, saying that if it were to provide similar terms, it would have to know what the other terms were. While Comcast had asked that the information be made available to company in-house executives, the bureau decided it should only go to an outside entity.

Not wanting to make that info available to the competition—even through outside counsel—CBS, News Corp., Viacom, Sony, Time Warner and Disney filed a request Dec. 18 (joined by public interest group Public Knowledge) for the stay and challenging the underlying condition.

Comcast fired back, saying it was “self-evident” that it could not comply with the comparable terms and conditions benchmark unless it had those comparables to begin with. Comcast also said that none of the OVDs it was negotiating with for carriage of individual channels had made that info available directly to the company. Of course, for now they won’t have to.

The benchmark condition requires Comcast/NBCU to make its content available to OVDs on similar terms and conditions to deals those OVDs have with other content providers (see What Is the ‘Over-the-Top Condition’?).

But the bureau actually dismissed that stay request, as well as opposition to it by Comcast, and granted the stay on its own motion. “The Content Companies raise significant issues, and we believe that the public interest will be best served by staying the Benchmark Condition Order to allow the Commission an opportunity to address those issues,” the bureau said.

The FCC may now decide that making the terms of other deals available was not necessary to fulfill the benchmark condition, or change its mind and conclude that the condition was not in the public interest, period.

In its recent annual report to the commission, Comcast said it was negotiating deals with OVDs for full-boat carriage. But the benchmark clarification does not apply to those deals because they do not have the “similar terms” condition, as do negotiations for individual channels. “The full freight condition doesn’t require similar terms, so we wouldn’t need to see the other deals to enter into negotiations,” said a Comcast source. In those deals, Comcast can negotiate before the OVD has negotiated with anyone else. But because the OVD can’t have more than 45% of its content be Comcast/NBCU channels, it can’t launch until it has lined up 55% from a separate source.

Why did the bureau issue its own stay rather than simply grant the stay requested by the content providers? The FCC had no comment at presstime. According to a communications attorney who has been following the case, the FCC doesn’t want to be perceived as taking sides. In addition, it won’t have to meet the four-pronged test that an outside party’s challenge would to warrant a stay. It also gives the bureau more time than if it were simply the next volley in a challenge process that began late last year.

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