Martin May Circulate Unbundling, Other Cable Items
FCC Chairman Kevin Martin is thought to be close to circulating a broad item on wholesale deals for video channels that also may revamp how independent programmers’ complaints against cable operators are dealt with. Agency and industry officials said they expect Martin to have circulated an order or rulemaking notice late Wednesday, or to soon do so, with an eye toward getting a commissioner vote at the Dec. 18 open meeting. Officials also believed the chairman may soon circulate an order on movie studios’ request for a waiver of selectable output controls. An FCC spokesman declined to comment.
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The Media Bureau is thought to be working on an order on whether to allow studios to use selectable output controls to send HD movies to cable and satellite-TV subscribers before the films go on DVD, said agency and industry officials. The Motion Picture Association of America in May sought such a waiver, on behalf of its members (CD May 13 p7). The order also may circulate in time for a vote at the December commissioner meeting, said agency officials. It may approve the waiver but with curbs, said an industry official Wednesday, while other industry officials were optimistic earlier this week that the waiver may be approved.
The unbundling item could be an order or rulemaking, said commission and industry officials, most of who expected an order. The order was expected to prevent or limit cable programmers from dictating, among other things, as a condition of pay-TV carriage the program tier which channels must appear on, said the officials. Parts of the item may resemble a filing from Cablevision, they said. The item may address some of Martin’s concerns about channel bundling, they said.
TV programmers wouldn’t be able to negotiate the tier of service on which a multichannel video programmer can carry them, and existing carriage provisions to that effect would be voided under language proposed by a Cablevision lawyer in an e-mail sent Saturday to an aide to Martin and to Media Bureau Chief Monica Desai. Pay-TV programmers and broadcasters would be barred from negotiating carriage provisions that “restricts … the MVPD’s packaging or pricing of such programming or stations,” Michael Olsen, vice president of legal and regulatory affairs for Cablevision, wrote in an e-mail, according to an ex parte disclosure he filed two days later.
Cablevision’s proposal also would bar programmers from setting any rate for carriage other than a per-subscriber rate, regardless of tier, package, volume or level of carriage. And it would ban broadcasters and pay-TV networks from setting as a condition of carriage a number of subscribers to which the operator must deliver the programming. A day before Olsen’s e-mail, Cablevision founder Charles Dolan and several executives toured the FCC’s eighth floor with Mediacom Chairman Rocco Commisso to discuss retransmission consent issues, the DTV quiet period proposal and other cable programming rules, an ex parte filing shows. Cablevision and Dolan have a “longstanding view” that programmers shouldn’t be able to keep programming from cable, satellite and telco-TV sellers unless it’s carried in a specific tier, said a company spokesman. “We believe that programming should be sold on a per-viewing-subscriber basis, and not be required to be distributed to all customers as a condition of carriage.”
Martin also was believed to want to circulate an item dealing with independent cable programmers. FCC and industry officials said they expected him to circulate an order requiring cable operators to decide within a set time whether to carry a channel. The order also could change the prima facie rules in complaints filed by programmers against pay-TV companies, making it easier for the independent networks to make a showing that they've been discriminated against in favor of networks owned by the cable operator, said agency and industry officials.