Martin Video Plan Would Exempt Independent Operators
Under a proposal by FCC Chairman Kevin Martin, independent cable operators would be exempted from an expanded definition of what constitutes affiliated channels in complaints filed by independent programmers, said agency and industry officials. Tuesday afternoon, Martin’s office circulated a revision to a program carriage order he seeks a vote on by the Dec. 18 public meeting (CD Dec 4 p3), they said. An FCC spokeswoman confirmed that Martin made a proposal, but couldn’t provide details.
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The edit clarifies that independent programmers couldn’t claim that cable operators owning no programming assets favored channels owned by other multichannel video program distributors because of their affiliation and because the small networks lacked sue ties, other agency and industry officials said. However, cable companies that carry networks owned by other operators or by satellite-TV companies still could be judged to have favored those channels over independents on the basis of affiliation, they said. No FCC members other than Martin have voted on the order and rulemaking notice, said an FCC official. The notice seeks to give cable operators more ways to sell channels in smaller packages by barring programmers from requiring they be distributed in certain packages. The NCTA declined to comment, said a spokesman.
Martin proposed the order clarification “because of some complaints about the wording from small cable companies and from other commissioner offices,” said the commission spokeswoman. Wording in the original draft order had been proposed by some consumer groups, but small cable operators, and other FCC members raised concerns, she said. Those consumer groups expressed no objections to the change, she said, declining to name them or the cable companies.
A Tuesday letter from the Broadband Services Providers Association, whose members include RCN and SureWest, said it opposed expanding the affiliated definition. There’s “no legal basis or practical benefit to expand the scope of the program carriage rules so that they would allow discrimination complaints to be brought against MVPDs that do not have financial interests in the programmers that are the supposed beneficiaries of such discrimination,” it said. American Cable Association officials told aides to Commissioners Jonathan Adelstein and Deborah Tate on Friday and Monday that the association had a “strong objection” to any such changes, ex partes said. An ACA official declined to comment on the proposed change Wednesday.
Ex partes show cable operators and programmers have made many visits to the FCC’s eighth-floor this and last week to voice opposition to the order or the notice, which FCC officials have said are packaged together. They include Comcast, Disney, the Motion Picture Association of America, NBC Universal, News Corp., Time Warner and Viacom. Although program lobbying has focused on the notice and cable operators have homed in on the order, both industries are concerned about the order, said a media lawyer. Another media lawyer said some programmers are most concerned about the notice.
Cablevision, whose proposals are contained in the notice, told aides to all FCC members other than Adelstein that “the time is ripe to explore” such a proposal because “programming costs are a substantial and rising cost component of cable prices,” said an ex parte. Responding to Disney’s comments that the cable operator was two-faced in putting forth the proposal but defending itself in an antitrust lawsuit on channel packaging (CD Dec 3 p13), Cablevision said it has always denied that such practices violate the Sherman Act.