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NCTA: FCC's Program Carriage Rule Changes Are Unwarranted

The National Cable & Telecommunications Association told the FCC Monday that there is no need to try and make it easier to file complaints because there is no real harm that demands the intrusion of government on protected speech or the expansion of rules.

"The commission's proposals to encourage and facilitate the filing of more complaints and to expand the scope of the discrimination provisions of the rules are wholly unwarranted and at odds with the statute," said NCTA in comments on the FCC's proposed changes to the rules.

NCTA calls the FCC's expansion of discovery rights "fishing expeditions" that could yield useful competitive information but would be unlikely to lead to more meritorious complaints.

It also takes issue with the proposal of authorizing damages, which NCTA says could give programmers undue leverage in negotiations and lead to operators giving "unwarranted" preferential treatment to some networks to settle or avoid bogus claims.

The commission has proposed getting rid of the automatic stay of any Media Bureau carriage mandate. Currently, such forced carriage must be reviewed by the full commission before it goes into effect. NCTA argues that mandatory carriage of programming a cable operator does not want to carry has serious First Amendment problems. NCTA says that it is not sure such a remedy is ever justified, but certainly not before the commissioners have affirmed a bureau or administrative law judge decision.

NCTA calls completely unwarranted the proposal to require MVPDs to negotiate in good faith with any network similarly situated to their own owned networks is unwarranted since the program carriage rules impose no affirmative obligation on an MVPD to carry such networks, only a prohibition on denying carriage because they are unaffiliated.

"The harms that Congress feared when it enacted the program carriage provisions of the Act were based on marketplace characteristics that have disappeared," said NCTA. "While the proposed rules may make it easier and provide new incentives to file program carriage complaints, there is no reason to think that the result will be more meritorious complaints...There is, in short, no basis in policy or law for these efforts, and they should be abandoned."