Program Carriage Draft Would Give FCC Deadlines to Act on Complaints
FCC staffers and administrative law judges would face deadlines to act on program carriage complaints made by independent cable programmers against multichannel video programming distributors, under a draft order, agency and industry officials said. They said the order that began circulating earlier this month (CD May 3 p8) would give the Media Bureau 60 days to decide whether a complaint made a prima facie showing, or case at first sight. The clock would start ticking after the end of the pleading cycle on the complaint, which lets only the parties to the case comment, agency and industry officials said. Other deadlines would be triggered once the bureau determined an initial case was made.
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The draft has drawn lobbying visits to the eighth floor by Comcast and DirecTV, filings posted to docket 07-42 as of Monday showed. Both the cable operator and DBS company sought limits on the item, which responds to a 2007 rulemaking notice, at http://xrl.us/bkn2dy, issued when Kevin Martin was FCC chairman. “Very few filings have been made since late 2008” in the proceeding, Comcast said in a filing last week. “The agency would likely benefit from an expedited reopening and refreshing of the record."
A rulemaking notice also circulated at the same time as the program carriage order, asking about procedural changes, FCC officials said. One possible change that industry officials said the rulemaking asks about is letting a complainant contend an MVPD discriminated against it by not carrying the channel, while distributing another channel with similar programming that’s affiliated with a pay-TV company. The rulemaking is said to ask about giving standstill carriage to a channel that lodged a complaint, while the case is pending. The draft also is said to ask about when the one-year statute of limitations should start in program carriage complaints: When the contract at issue is signed, or when the alleged discrimination occurred. A bureau spokeswoman declined to comment.
The rulemaking also asks if the complainant or defendant should face the burden of proof, once a case is determined by the bureau to have a chance of succeeding, industry and agency officials said. They said it notes that an arbitrator in the Mid-Atlantic Sports Network’s complaint against Time Warner Cable took a different position on who must refute the case than did an FCC ALJ did in WealthTV’s case against that MVPD, Comcast and others. The MASN v. Time Warner Cable arbitrator said the burden lay with the defendant, while Chief FCC ALJ Richard Sippel said in his recommended decision on WealthTV that the burden remains with the plaintiff. A separate order in which the commissioners would go along with Sippel’s recommendation and dismiss WealthTV’s against also circulated the first week of May, on the same day as the program access order and rulemaking, FCC officials said. Bright House Networks and Cox Communications are the other defendants in WealthTV.
The bureau would get 60 days to decide on program carriage cases, after making a prima facie determination, FCC and industry officials said. They said that deadline would be triggered if the bureau decides it doesn’t need to conduct further discovery. When the bureau does seek access to additional documents, it has 150 days to make a decision after making a prima facie finding, commission and industry officials said. The ALJ would have 240 days to issue a recommended decision, starting from when the case went before the judge, if the bureau referred a case there, FCC and industry officials said. Since alternative dispute resolution (ADR) such as arbitration can occur between referral of the case by the bureau and an ALJ starting to consider it, the clock wouldn’t start until the case went before the ALJ, a commission official said. Sippel in late April and early May heard Tennis Channel v. Comcast, after the sides couldn’t settle during ADR.
How the FCC deals with program carriage complaints “needs to be fixed,” based on “the experience we've had,” WealthTV CEO Robert Herring said in an interview. “We know it needs to be fixed, they know it needs to be fixed, but we haven’t been asked for any input” on the draft order and rulemaking, he added. Herring noted that he’s not seen a copy of it, either.
DirecTV wants to keep any standstill provision “appropriately limited,” the company said in a filing posted Monday. It also asked that “relevant affiliation not be extended to all MVPDs,” and “rather to just the MVPD at issue.” DirecTV representatives met with an aide to Commissioner Robert McDowell. Comcast reported meetings with aides to Commissioners Michael Copps, Mignon Clyburn and McDowell. It sought more time for defendants to answer a complaint, seeking an increase to 45 or 60 days from the current 30 days. The cable operator also asked the commission not to mandate carriage before it found a violation occurred. Such carriage, Comcast said, could raise “significant First Amendment concerns.”