Revamp of Program-Carriage Complaint Rule on FCC’s Back Burner

Commissioners don’t appear to be working on tweaks to complaint procedures that some contend are cumbersome. Chairman Kevin Martin failed to get support from colleagues for revamped rules at the Nov. 27 meeting, said communications lawyers including Kathleen Wallman. Commissioners objected to several rule changes that Martin put in a proposed leased access order which might have made it easier for programmers to prove that cable operators discriminated against them, favoring networks they own over the upstarts. The order was stripped of those provisions and then approved 3-2 at the meeting, with Commissioners Deborah Tate and Robert McDowell dissenting (CD Special Bulletin Sept 28 p1). An FCC spokeswoman declined to comment, as did an NCTA spokesman.

Supporters of new rules believe the commissioners eventually will again turn their attention to the matter, though it’s not’s clear what would prompt that. Commissioners don’t face much pressure to decide quickly how to redefine a condition of the $17 billion purchase of Adelphia by Time Warner Cable and Comcast that allowed regional sports networks demand arbitration, said agency and industry sources. In banning any other programmers from taking advantage of the condition, the commission said it would reconsider complaint procedures for all independent programmers. “We intend to adopt shortly an expedited carriage process at the Commission that will provide a timely and predictable carriage dispute resolution process for all unaffiliated programmers, including” regional sports networks, said an order classing the America Channel as one.

MASN used the Adelphia condition to force Time Warner into arbitration. Arbitrator Jerome Sussman found Jan. 7 that the cable operator had reason to discriminate against MASN by not agreeing to widely carry it to the company’s 1.5 million subscribers in North Carolina. A final arbitration hearing is set for March 3, he said in an interview, declining to comment further. At that hearing, each side will try to convince Sussman that he should find that its carriage offer is the better one, an industry attorney said. Sussman probably will issue his decision a month or so after the hearing, judging by his three-week turnaround of an interim decision after his first meeting with both sides, the lawyer said. At that time, Time Warner Cable could appeal the decision to the FCC. The commissioners probably will consider the appeal, instead of the Media Bureau, the lawyer said. But an agency source said it’s unclear whether the bureau or commissioners will make the call.

Independent programmers besides MASN can’t take advantage of the arbitration condition because it covers only regional sports channels. WealthTV, locked in a carriage dispute with Time Warner Cable, can’t use it. Changes proposed by Martin in the way the FCC handles complaints -- such as on deadlines for the agency to act, easier document discovery procedures and changing evidentiary thresholds -- might help independent programmers, said Wallman, who represents WealthTV. But the industry may have been discouraged when the bureau gave Time Warner Cable two more weeks to reply to WealthTV’s carriage complaint, she said. “Giving the other side more time is not consistent with the message that ‘we want this to be an expedited’ process,” she said. “It’s the wrong signal.”

Nonetheless, Wallman and others are hopeful commissioners will find reason to review complaint procedures. “I'm cautiously optimistic,” she said, citing conversations with FCC officials before the leased-access order vote. “It seemed to me that people really understood that there was a need for a change in the process,” Wallman said. “It seemed as though everyone we talked to thought it would be valuable if we had these reforms, and then it got decoupled from leased access. The will to make these changes is there, and the timing is just a cipher.”