Cable operators that do not share their owned terrestrially delivered regional sports networks with their competitors will be presumed to be in violation of Federal Communications Commission rules against unfair acts or practices.
Although they will get to rebut the presumption, the FCC majority made it clear Wednesday it was taking action against what it saw as a loophole for multichannel video providers to withhold must-have programming from competitors.
As expected, the FCC Wednesday voted to close, or at least narrow, the exemption of terrestrially-delivered networks from program access rules.
The vote was 4-1, with FCC commissioner Meredith Attwell Baker joining the Democratic majority and Republican Robert McDowell dissenting with the advice that he expected to see the decision challenged in court.
Media Bureau staffer David Konczal said there were three reasons for the FCC's action. He said cable continues to have incentive and ability to engage in unfair practices; 2) that there is evidence of withholding programming, including must-have cable-affiliated regionals sports nets in San Diego, York, New York and Philadelphia; and 3) that there is evidence that such withholding depresses satellite subscribership, and thus reduces competition.
The commissioners voting for the order billed it as a consumer-friendly move to boost competition, while McDowell said that it was an over reach of authority whose ends might be laudable, but whose means were legally suspect. "The FCC is not Congress; we cannot rewrite statute," said McDowell.
Congress confined its access mandate to vertically integrated program nets to satellite-delivered programming, but the FCC Wednesday said it had authority under the "unfair acts and practices" section of its rules to create the complaint mechanism for terrestrially delivered nets.
MVPDs will not be able to deliver a standard-definition version of a regional sports network and withhold the HD version as a way of complying with access requirements. The HD version will be treated as a separate service for purposed of filing program-access complaints.
The access conditions applied to Time Warner and Comcast in the Adelphia mergers continue in force.
Dish Network and Verizon FiOS both were pleased by the FCC vote.
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