Program Carriage Proceeding May Be in Play at FCC
A program carriage proceeding may be in play at the FCC, with career staffers and commissioners likely to consider changes to an order and further rulemaking notice (CD May 17 p7) before they're voted on, agency and industry officials said. They said it’s unclear whether the Media Bureau and office of Chairman Julius Genachowski will end up making all, or even some of the changes many multichannel video programming distributors seek. Genachowski and some of the other FCC members seem likely to consider making changes, agency and industry officials said. Much of what will end up in play will be based on what changes Genachowski and the General Counsel’s office seek, if any, after reviewing cable, DBS and telco-TV concerns, commission officials said.
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Changes that may get eighth-floor consideration include moving some things that were in the first version of the draft Media Bureau order that circulated early last month into an accompanying further rulemaking notice, agency and industry officials said. The draft order also could be revised, they said. Lobbying continues on the issue, ex parte notices in docket 07-42 show. Cable operators have focused much effort on trying to get removed from the order a provision that would require standstill carriage of independent cable channels while their cases are before the FCC, after the bureau determines an initial, or prima facie case, has been made.
Axing the standstill requirement from the order appears to be the cable industry’s top concern, commission officials said. No decision has been made on whether to remove it entirely, or shift the issue to the rulemaking and ask about such a requirement there, agency officials said. Such a move could occur, one FCC official said. A bureau spokeswoman declined to comment.
NCTA continues to want the regulator to “seek further comment before it considers adopting final rules, including the possibility of a ’stand still’ requirement,” the association recounted having told aides to Commissioners Mignon Clyburn and Michael Copps. DirecTV wants any such carriage requirement “appropriately limited,” the company reported Thursday having told Clyburn’s aide. Genachowski’s office and the bureau may decide how to proceed after finishing meetings with industry officials, commission officials watching the proceeding told us.
Another issue that may get consideration from commissioners is whether to change the part of the rulemaking that deals with MVPDs that don’t own content yet carry programming from networks affiliated with other pay-TV companies, commission officials said. The draft rulemaking asks about allowing program carriage complaints to be made on the basis that an unaffiliated channel didn’t get similar carriage to one that is owned by another MVPD, commission officials have said. That has raised concern among some cable, DBS and telco-TV interests that fear they could face complaints over programming they don’t own, ex parte filings suggest.
DirecTV, Time Warner Cable and Verizon are among those asking in recent days that the FCC not extend affiliation rules in program carriage complaints to pay-TV companies that don’t own programming, and who haven’t typically been subject to such rules. “Affiliation relevant to a carriage claim [should] not be extended to all MVPDs (rather than just the MVPD at issue),” DirecTV said. Time Warner Cable sees “no basis in the statutory language or the legislative history for applying the prohibition on affiliation-based discrimination to MVPDs with no ownership interest in the alleged beneficiary of the claimed discrimination,” that company reported telling Chief Bill Lake and other bureau officials as well as aides to Genachowski, Copps and Commissioner Robert McDowell. “There is no sound policy reason for extending the rules to cover programming services owned by other MVPDs. Such a rule presumes collusion among all MVPDs, which is untrue, and would be beyond the statutory authority established by Congress."
A draft order denying WealthTV’s program carriage complaint against four cable operators seems likely to get FCC approval, although no decision has yet been made, an agency official said. The programmer’s request to meet with all four active FCC members on the draft order seems unlikely to be granted, commission officials said. They said that’s because there already seems to be a significant record in the case, which Chief FCC Administrative Law Judge Richard Sippel in 2009 recommended be dismissed by commissioners, and no confusion about the proceeding. A WealthTV executive had no comment. Defendants Bright House Networks, Comcast, Cox Communications and Time Warner Cable have said in previous filings in docket 08-214 that there’s no need for the meetings WealthTV seeks, because the existing record is sufficient.