Washington—Federal Communications Commission Chairman Kevin Martin indicated Thursday he won't attempt to adopt rules that could help the NFL Network prevail in its carriage dispute with Comcast Corp.
“I had proposed that the [FCC] change some of its rules for any kind of complaints about carriage that..[ended up being filed]," Martin said. “But the [FCC] did not change those rules in the past, so [the NFL complaint] will be filed under the old processes and the commission will follow them like any other complaint.”
Last fall, Martin advocated rules that would send carriage disputes between a cable operator and a programmer to compulsory arbitration. At one point, he was interested in putting matters in the hands of an administrative law judge.
On Tuesday, the NFL Network filed a complaint at the FCC that accused Comcast of discriminating against the league-owned sports channel in violation of equal treatment requirements in federal law.
The NFL Network's complaint alleged that Comcast is violating the law because Comcast-owned sports networks receive wider distribution on Comcast cable systems than Comcast is willing to extend to the NFL Network.
“The commission will end up reviewing that complaint as we do any that anybody files,” Martin said.
Pursuant to a contract that is the subject of ongoing litigation, Comcast carries the NFL Network on a sports programming tier that all customers may purchase but only about 1 million Comcast subscribers have done so.
The NFL Network, by contrast, is demanding to be carried on Comcast's most widely purchased cable programming tier, seen in nearly all 24 million Comcast households.
“Comcast makes the NFL Network available to all of our customers on a tier of service that the NFL agreed to by contract,” said Sena Fitzmaurice, Comcast's senior director of corporate communications and government affairs, in a statement.
The NFL Network has been lobbying state legislatures to pass laws that would mandate arbitration in program carriage disputes.
Progress & Freedom Foundation Senior Fellow Barbara Esbin, a former FCC official, issued a paper Thursday arguing that markets should be allowed to determine whether Comcast and the NFL Network can resolve the differences.
“The market, rather than the legislature, is the best place to decide this matter,” Esbin concluded.
Esbin's paper contained five major observations:
1. "Programmer carriage choices may not reflect consumer preferences. Simple substitution of cable operator carriage choices with programmer choices is less likely than the current framework of market negotiations to protect consumers.
2. Mandatory arbitration is government intervention. Despite claims that it is a ‘process remedy’ for failed negotiations, mandatory arbitration where one party alone determines carriage terms and conditions is government intervention.
3. Current federal remedies are effective to address competitive harms. Program carriage rules administered by the FCC are sufficient to address allegations of discrimination and competitive harm. The recent complaint to the FCC filed by the NFL Network claiming discrimination by a cable operator illustrates there is no need for state intervention.
4. Behavior addressed by the proposed state legislation would be preempted by federal regulation. Section 616 of the Communications Act, giving the FCC jurisdiction over program carriage disputes, was enacted to address fears of anticompetitive discrimination by vertically-integrated cable operators.
5. “Arbitrate and carry” rules would violate the First Amendment rights of cable operators. The proposed state legislation would impose carriage obligations which are not sufficiently well tailored to serve an important government interest."
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