FCC Bureau Working on Terrestrial Exemption Order
The Media Bureau is working on an order addressing the FCC terrestrial video exemption that lets cable operators withhold from subscription-TV rivals programming they own but don’t distribute using satellites, several commission and industry officials said Friday. The bureau hasn’t circulated an item yet, but it appears to be close to finalizing an item that may address a commission rulemaking on program access, said several FCC and industry officials.
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The order may close part of the so-called terrestrial loophole, citing section 628 of the Communications Act, commission officials and communications lawyers said. It likely will prevent cable operators from withholding from rivals regional sports programming, they said. Telcos and smaller cable operators have sought such action, with AT&T and Verizon filing complaints against Cablevision and Cox. The order isn’t thought to address those complaints directly, though that could change, commission and industry officials said. A bureau spokeswoman declined to comment. A NCTA spokesman declined to comment.
Although commission and industry officials haven’t seen an item yet, they've heard that one is in the works and could be circulated soon, they told us. Timing for circulation and a vote are uncertain, with officials differing on when they expect commission action. It’s unclear whether an expansion of the ban on program exclusivity will extend to all HD programming owned by cable operators, or only regional sports programming in that format, officials said.
“We think the order has been ready there to be acted on for six months” in terms of all documentation having long ago been filed so the issue is ripe for action, said President John Goodman of the Coalition for Competitive Access to Content. He met with commission officials mid-month on program access rules, but hasn’t heard details of any potential order, he said. “If this gets active at this point, that’s a very good thing,” Goodman said. “The basic documentation for what they need to make a ruling is all there” except for updating the record on recent developments.
“It’s also timely in the aspect of anything that might happen with Comcast and NBC,” since such a deal may raise program access issues, Goodman said. A recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit upholding FCC authority under Section 628 to ban multiple- dwelling unit (MDU) exclusive video arrangements could be another reason why the commission now wants to act, speculated analyst Paul Gallant of the Washington Research Group. “After last summer’s court ruling on MDUs, I think the Commission wants to use its newfound power under 628 to actively promote competition to cable.”