FCC Video Order Would Expand Definition of Affiliated Networks
An FCC order set for a Dec. 18 vote (CD Dec 1 p1) would vastly expand the type of channels deemed to be affiliated with a cable company that has received a program carriage complaint from an independent programmer, said FCC and industry officials. The order circulated last week would define as an affiliated network for purposes of such complaints one that’s owned by any multichannel video programming distributor, they said. That expands what’s considered to be the current definition from channels owned only by the company that’s alleged to have discriminated in favor of an affiliated network over an independent one, the officials said.
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Also likely to be voted on by or at this month’s public FCC meeting are notices of apparent liability against large pay-TV companies and telcos for violating commission digital TV subscriber notification rules, agency and industry officials said. The notices total about $11 million in fines and are against AT&T, Comcast, Time Warner Cable, Verizon and three other companies, said an FCC official. The notices find that the companies, in their roles as pay-TV companies or eligible telecommunications carriers providing telecommunications services for the poor, failed to tell all such subscribers about the DTV switch, said industry and agency officials. The companies are supposed to notify customers by putting information in monthly bills or by other means, they said. Spokespeople for the companies didn’t immediately have any response or declined to comment.
A further rulemaking notice accompanying the video order says cable programmers may have sufficient market power to dictate the terms of distribution of their channels across the pay-TV industry, FCC and industry officials said. The further notice lists several complaints by pay-TV companies alleging that programmers have required them to buy multiple channels to get one and says programmers haven’t sufficiently rebutted some complaints, they said. Although the order doesn’t reach any tentative conclusions, it’s thought to tilt against the programmers. The NCTA declined to comment, said a spokesman. FCC Chairman Kevin Martin will hold a press conference this week, perhaps Tuesday, to discuss all items on which he’s seeking a vote by Dec. 18, said a commission spokesman.
The FCC spokesman confirmed that the further notice recaps contentions by many pay-TV companies in response to an earlier notice of concern about broadcaster and cable programmer requirements as conditions of carriage, such as demanding to be carried on the most widely distributed tier. Noting that such practices can lead to increased cable rates, the notice now on circulation seeks comment on proposals from Cablevision and others to prohibit cable programmers and TV stations that strike deals with cable operators from making such demands about what tier they're carried on. The notice seeks comment on whether current rules require cable operators to carry stations in basic tiers and if so whether the rule can be changed, said the FCC spokesman.
He confirmed that the program complaint order on circulation clarifies that FCC rules bar an MVPD from discriminating on the basis of a programmer’s lack of affiliation with any pay-TV company. The order has a standstill provision mandating that terms of an existing contract between a programmer and company facing a complaint remain in effect while the FCC is considering the allegations, the spokesman said. The order also sets a timeframe for the FCC to resolve program carriage complaints, with the Media Bureau having 30 days after comments are filed to decide whether a prima facie case has been made and the FCC having six months after receiving a complaint to issue a final order.
One item Martin isn’t now seeking a vote on is an order addressing a waiver request by the Motion Picture Association of America from selectable output control rules, said agency and industry officials. Although the Media Bureau was thought to be working on an order that would grant the waiver with conditions, no document has circulated among commissioners, they said. But Martin still may seek a vote on the waiver before he leaves as chairman, agreed communications lawyers both supporting and opposing the MPAA’s request.
A vote could come at the January FCC meeting, said an industry attorney. Others said Martin could circulate an order in the coming weeks. But if he does approve the waiver request, consumer electronics manufacturers, public interest groups and others may join efforts to launch a public campaign to oppose its approval, said an industry official. The CEA continues to oppose such a waiver, which it believes would “render unusable” 20 million TV sets, said a spokesman. Older HDTV sets don’t have jacks that would allow the use of selectable output controls, other industry officials have said. “This effort is particularly dangerous, timed as it is to coincide for the DTV transition,” said the CEA spokesman. “The potential for widespread consumer confusion is enormous.”