FCC Opens Long-Awaited Cable Program Access Rulemaking

The Notice of Proposed Rulemaking unveiled late Friday asks if changes are needed in FCC handling of complaints from networks that can’t get carriage on cable systems. The notice asked whether clarifications is needed in regard to a process for Commission staff to find a complainant made a prima facie case, refer the matter to an administrative law judge and subsequently act. “We seek comment on whether specific time limits on the Commission, cable operators or others would promote a speedy and just resolution of these disputes,” said the notice: “We seek comment on whether the Commission should adopt rules that expressly allow independent programmers to seek nationwide access directly from multiple system cable operators and, if so, how such a process would operate.”

The notice reflects independent cable networks’ claims that FCC carriage dispute resolution procedures are too cumbersome and complaints by small programmers that it is hard to lease capacity on cable systems. The notice said it dovetails with a year plus FCC review of Time Warner and Comcast’s $17.6 billion 2006 purchase of Adelphia. The FCC order approving the Adelphia deal said programmers seeking to get leased access deals from Comcast or Time Warner could seek arbitration of disputes. Friday’s notice asked about costs associated with leased access disputes and “whether there should be a defined period for cable operators to respond to leased access requests or other aspects of the enforcement process.”

The notice asked about insurance requirements cable operators place on those seeking leased access. Some programmers have told us cable operators’ demands for insurance make it difficult to afford to lease channel capacity. The rulemaking asked for input on the prevalence of leased-access deals and whether cable operators respond to programmer requests for rate information on such deals within 15 days, as FCC rules require. Some programmers have said they had to wait far longer to get such details.

Voting July 13 for the Adelphia order, Commissioner Jonathan Adelstein said Chairman Kevin Martin agreed to issue the leased-access rulemaking within 3 months. It wasn’t issued for 11 months, a lag FCC officials declined to explain. However, Media Access Project Senior Vice President Harold Feld said: “My impression has been that this is a classic case of where everyone on the 8th floor agrees they want to do something, but it wasn’t anyone’s highest priority.” The Adelphia order has no clause mandating that the FCC open the leased access review. Instead, Adelstein and Commissioner Michael Copps noted other commissioners agreed to study leased access, in comments at the meeting approving Adelphia’s takeover.

Feld and the America Channel cheered the rulemaking. The FCC decision to seek comment on both leased access and cable carriage complaints suggests the agency takes independent programmers’ plight seriously, Feld said. The America Channel, in a years-long dispute with Comcast and Time Warner, cheered the notice. The rulemaking isn’t related to that channel’s campaign to be defined as a regional sports network under the Adelphia deal, CEO Doron Gorshein told us. Adelstein hopes the notice will address foot-dragging by the Media Bureau on leased access complaints, he said: “Commission rules and practices have made it prohibitively expensive and unnecessarily burdensome for most independent programmers to obtain and maintain leased access.”