FCC Met With Parties to Program Access Cases, Ponders How to Proceed
FCC decision makers met with all sides on program access complaints, as the officials ponder how to proceed after an appeals court sent some rules back to the agency for rethinking. The June 27 meeting came as the top two telcos seek action now on their 2009 complaints (CD June 22 p6), and as the cable defendants contend the agency must first pursue a rulemaking under the ruling on Cablevision v. FCC. A commission official watching the complaints against that company and its former programming unit said the agency doesn’t seem to have yet decided what to do. At the meeting, commission staffers indicated they could act on the complaints even under last month’s decision by the U.S. Appeals Court for the District of Columbia Circuit, Cablevision recounted in its filing on the gathering in docket 07-198 (http://xrl.us/bkypff).
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Some program access rules expanding a ban on withholding from multichannel video programming distributors channels affiliated with cable operators, approved 4-1 last year, were “left undistributed” by Cablevision (CD June 13 p4), the company reported agency officials suggesting. “This reading of paragraph 22 is mistaken,” the cable operator said of the FCC’s suggestion of how the D.C. Circuit’s ruling related to the 2010 order. Parts II and IV of the ruling contradict the FCC’s possible new view, Cablevision said. The order allowed complaints to be made on a case-by-case basis for terrestrially delivered channels that were exempt from program access rules, and said some types of withholding may be categorically unfair, the part of the order vacated by the court. Executives from Cablevision and co-defendant Madison Square Garden, which won’t let AT&T and Verizon carry the HD versions of MSG and MSG+, attended the FCC meeting. Executives from both telcos also attended the gathering with Media Bureau Chief Bill Lake and others in the front office and with FCC General Counsel Austin Schlick, Cablevision and the telcos each said.
The bureau appeared to have been waiting for the D.C. Circuit to rule on Cablevision’s lawsuit against the FCC over the new rules before acting on the complaints by AT&T and Verizon that the operator and MSG unlawfully withheld the two HD networks, a commission official said. Officials inside and outside the agency have said it’s unclear exactly how the bureau now will proceed. Cablevision wants a notice and comment period on the “unfairness prong” of the new rules vacated by the D.C. Circuit, while the plaintiffs contended that’s unnecessary. A bureau spokeswoman declined to comment.
The D.C. Circuit confirmed the agency has authority to decide on the complaints over the regional sports networks under its case-by-case adjudication rules, which weren’t sent back to the FCC in Cablevision, AT&T and Verizon said separately. Verizon’s filing (http://xrl.us/bkypfy) was posted in the docket Thursday, along with Cablevision’s, while AT&T’s wasn’t in the docket at our deadline on Friday. The plaintiffs and defendants earlier in June sent letters to the commission outlining their respective cases, which they expanded on during the FCC meeting.
Cablevision’s arguments against FCC action now “are transparent attempts to manufacture further delay, so that an additional NBA and NHL season can begin with consumers in the New York metropolitan area and Buffalo unable to” get from a telco games in HD, Verizon said. The telco said it addressed the “single point on which Cablevision’s counsel dwelled at length during the meeting” -- whether the 1997 D.C. Circuit decision on Paralyzed Veterans of America v. DC Arena requires a new comment cycle. That ruling “is simply an exception to the general rule” that such rulemakings aren’t needed, Verizon said.
AT&T contended Cablevision and MSG have “exhaustively briefed and argued all relevant issues” on the that telco’s complaint. The veterans’ case covered what the ruling said was a “fundamental change in its interpretation of substantive regulation,” AT&T noted Paralyzed Veterans said. “But this is not what the Commission did here” because the FCC addressed withholding of cable operator affiliated channels from MVPDs under Section 628(b) of the Communications Act, AT&T said. “The Commission did not indicate, much less hold, that the withholding of terrestrial programming could never be an unfair practice under Section 628(b). Indeed, the D.C. Circuit endorsed the Commission’s reading of its prior orders.”