FCC Doesn’t Receive Channel Cost Data From Many Pay-TV Companies
The FCC didn’t get complete data on wholesale programming costs from many of the 13 pay-TV companies whose responses were recently due to the Enforcement Bureau (CD Nov 13 p5), said several industry officials. Many of the companies declined to provide the cost of each channel moved since November 2006 from analog to digital programming tiers, they said. Responses were due Thursday. An FCC spokesman said it’s reviewing the documents.
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Many large cable operators balked at providing the data to the commission because programmers didn’t want them to publicize details of carriage contracts, usually kept in strict confidence, industry lawyers said. The final question in Oct. 30 bureau letters of inquiry sent to Cablevision, Comcast, Cox, GCI, RCN, Time Warner Cable, Verizon and others asked for the per-subscriber costs of all channels moved. An NCTA spokesman declined to comment.
Verizon is thought to have not provided the information to the commission because the company claimed its channel moves didn’t result in changes to programming tiers, cable attorneys said. “Verizon simply hasn’t performed any of the analog-to-digital channel changes that are the focus of consumer groups and the FCC,” a spokesman said. “Verizon responded fully to the letter we received.” Several small pay-TV companies were thought to have provided at least some of the channel cost data sought by the bureau, said industry attorneys.
Although the bureau asked eight questions related to channel moves, some industry lawyers think interest is highest in getting wholesale programming costs, reflecting FCC Chairman Kevin Martin’s desire for channel unbundling. A bureau official was said to have told at least one letter recipient that the wholesale programming cost question was the most important one, said lawyers familiar with the probe. The FCC believes all the questions “are important and need answers,” said the agency spokesman. “Questions related to whether consumers were provided fair notice about changes to their services, including the loss of channels, and the justification for why those channels were moved by specific companies are as important as any of the other questions asked.”
Cable operators are waiting for a bureau response to their submissions, said industry officials, some of whom fear fines if the bureau deems the information incomplete. FCC General Counsel Matthew Berry wrote the companies being investigated that the commission would act against those that didn’t fully respond, said industry lawyers. The agency will determine “on a case by case basis” whether each company addressed all questions, said the FCC spokesman. “There are any potential number of next steps that the Enforcement Bureau may decide to take in response to companies that chose not to answer all of the questions.” He wouldn’t say what they might be.
Berry also told letter recipients that protective orders, issued to all 13 companies Wednesday, would keep contractual information private, said industry lawyers familiar with the inquiry. But the protective orders may have come too late, said Barbara Esbin of the Progress & Freedom Foundation, a longtime commission staffer who left in March. “The protective order was issued one day before the documents were due to the commission,” she said. “Without being privy to any of the individual responses, I would be very surprised given the 14-day deadline and the voluminous document requests if cable operators making a good faith effort to respond to the [letters of inquiry] were physically capable of responding to the document requests.”