Program Carriage Final Vote by FCC Nears; All Democrats Backing Draft
Cable operators soon will be required to carry independent networks once the FCC decides a complainant made an initial case in discrimination disputes, agency officials said. They said commissioners are poised to vote to approve a draft order and rulemaking on program carriage that contains such a standstill requirement. The FCC’s Democratic members have already electronically voted for the item on circulation, or said they will approve it, commission officials told us. They said Commissioner Robert McDowell may also end up voting for the order, but he hasn’t yet decided.
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The final rulemaking and order likely won’t have any significant changes after all, commission and industry officials said. Consideration of changing the standstill provision in the Media Bureau order, and other parts of the rulemaking notice, had been in play on the eighth floor about a month ago (CD June 3 p2). Commissioners Mignon Clyburn and Michael Copps now have decided they're satisfied with the initial draft, and they won’t pursue changes to what Chairman Julius Genachowski sent them for a vote May 3, agency and industry officials said. All types of multichannel video programming distributors -- cable, DBS and telco-TV -- had sought changes to the draft, ex parte filings in docket 07-52 show. A bureau spokeswoman declined to comment.
The FCC Democrats concluded that industry concerns on the item don’t warrant changes, commission and industry officials said. The standstill provision was a major focus of cable operator lobbying, with the industry wanting it junked from the order and put into the further rulemaking notice that asks about other changes to program carriage rules. Cablevision, Comcast, NCTA and Time Warner Cable contended standstill rules shouldn’t be adopted. DirecTV and Verizon wanted MVPDs not to face proposed new rules that could allow program carriage complaints on the basis that a company that doesn’t own a channel that’s part of another pay-TV provider nonetheless discriminated in favor of it and against an indie because of that affiliation.
The cable, DBS and telco industries are unlikely to get what they sought, FCC and industry officials said. Because the FCC’s three Democrats are voting for the draft, and haven’t proposed any major changes, the order and rulemaking seem unlikely to be changed, commission and industry officials said. They said the Democrats have concluded that the commission doesn’t need to seek additional comment on issues like standstill carriage. NCTA renewed its request for further comment to be sought on standstill, in a meeting last week with McDowell’s incoming interim media aide, Erin McGrath, a filing posted Friday showed (http://xrl.us/bkyo54).
It’s now partly up to McDowell to decide how to proceed, industry and agency officials said: He continues reviewing the item and likely won’t vote until later this week. Some said they believe McDowell will end up voting for the item, since he’s not expressed any concerns to colleagues about the draft. If McDowell has concerns and indicates he wouldn’t vote for the current draft, Genachowski would have to decide whether to incorporate his Republican colleague’s changes to get a 4-0 vote, or not do so and potentially not get a unanimous vote, commission officials said. McDowell’s office declined to comment. Copps has decided to vote for the order, but hadn’t voted electronically for it as of midday Friday, commission officials said. FCC aides had predicted the order and rulemaking would be approved by June 22 (CD June 16 p2).
There are “significant legal issues” that must first be decided before a standstill requirement is promulgated, NCTA said. The 2007 rulemaking notice, on which the order is based and seeks further comment, didn’t say the agency was contemplating that requirement, the association said. “Proceeding directly to a rule in these circumstances” would violate the Administrative Procedure Act, NCTA said: “Requiring MVPDs to carry programming in these circumstances directly implicates free speech concerns.” The group said there are “significant practical issues” about how a cable operator can be “made whole” if commissioners vote against a complaint and after interim carriage of an indie channel was ordered by the bureau.
Interim carriage would begin after the bureau decided a complainant made a prima facie case, FCC officials said. The order sets deadlines for the bureau to act on complaints, or for an administrative law judge to make a recommended decision should the bureau refer the matter to the ALJ. HDNet and the Tennis Channel are among those who have said the regulator can issue standstill and shot-clock rules without seeking further comment. “Allowing an independent channel to preserve the carriage which it alleges in a complaint would otherwise be illegally ended or changed is a needed procedural step to make the complaint process practically and effectively available,” a lawyer for HDNet recounted telling FCC Chief of Staff Eddie Lazarus (http://xrl.us/bkyo8i). “The standstill is consistent with an MVPD not being required to carry a channel not previously carried until completion of the Commission’s expedited review.”