Program Access Order Dissent Likely From McDowell
The FCC program access order may get a 4-1 vote at this Wednesday’s meeting, with Commissioner Robert McDowell dissenting, knowledgeable agency and industry officials predicted. His long-held skepticism about extending the commission’s authority in areas such as under Section 628 of the Communications Act will manifest itself in a “no” vote, they said. After considering whether Congress gave the agency room to expand a prohibition on withholding channels affiliated with cable operators from subscription-TV rivals to content not distributed by satellite, he concluded it didn’t, they said.
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The Media Bureau order will be voted on at the meeting despite some FCC members’ hopes -- though not expressed in a formal request -- for more time to consider it, commission officials said. Some additional minor changes have been made to the draft since three changes circulated Jan. 12 (CD Jan 15 p4), they said. One new change would give additional time to respond to companies facing complaints that they harmed a pay-TV rival’s ability to attract new subscribers by withholding from them terrestrially delivered programming, commission officials said. The revision provides for 45 days, up from 20 days, one said. A bureau spokeswoman declined to comment.
McDowell seems to disagree with supporters of the draft that Section 628 and a summer ruling by the U.S. Court of Appeals for the District of Columbia Circuit upholding FCC authority over that section allows for rules governing regional sports network programming, said a communications industry lawyer. The draft contains a presumption favoring complainants who seek access to such programming (CD Jan 13 p9). A unanimous vote for the order remains possible but is unlikely, commission officials said.
“I think Mr. McDowell is likely to be right that this will be challenged and there are serious jurisdictional and constitutional questions” to extending FCC authority over programming exclusive to cable operators, cable lawyer Steve Effros said. “I think he has been saying that all along and I think he has a point.” Effros isn’t involved in the proceeding. A representative of McDowell’s office declined to comment. A spokesman for the NCTA -- which along with some members has opposed what’s in the draft order -- declined to comment.
The other Republican on the FCC, Meredith Baker, appears likely to vote for the order, commission and industry officials said. Baker had initial concerns about the commission’s statutory authority when she began reviewing the order, an official said. The D.C. Circuit ruling upholding the FCC ban on cable company exclusives for video service with apartment buildings and the section itself gave her grounds to support the item, the person said. A representative from Baker’s office declined to comment.
FCC Democrats Mignon Clyburn and Michael Copps are generally supportive of what the order seeks to do, commission officials said. Copps has had concerns about the terrestrial exemption for cable operators, while Clyburn has made clear in recent meetings that she supports the order, they said. Representatives for both commissioners declined to comment.
The FCC may face an uphill battle defending itself in court, on First Amendment and other grounds, if industry sues over the order, said Effros. “Maybe sports television programming is a relative market all its own, in terms of these quasi-antitrust laws,” he said. “The line is going to be a very difficult one to explain to the court: What business is it of the government to start deciding what programming is essential and what programming is not, for competitive purposes.”