TWC May Face Program Access Complaint, as FCC May Soon Finish Work on Two Others

Hawaiian Telcom seeks access to all programming on a regional sports network in the state owned by Time Warner Cable. The cable operator has said it will give the would-be complainant rights to carry some games on the RSN, but not all of them. That’s according to a little-noticed FCC filing in docket 11-128 last week and an interview with Hawaiian Telcom’s lawyer. If no deal’s agreed to for all programming on the channel, the telco may complain. A Time Warner Cable spokeswoman declined to comment.

The Media Bureau, meanwhile, has indicated it may finish work soon on the two biggest U.S. telcos’ pending complaints on RSNs and against Cablevision and Madison Square Garden, industry officials said. They said the bureau indicated that and has denied a defendant’s request to make further arguments to the agency about the cases. A bureau spokeswoman declined to comment.

Cablevision and/or MSG wanted to discuss further a June ruling by the U.S. Court of Appeals for the D.C. Circuit sending back part of program access rules to the agency, industry officials said. The defendants were said to have wanted to discuss the D.C. Circuit’s remand of a rule that some withholding by channels affiliated with cable operators of content from rival pay-TV companies is unfair. Cablevision and co-defendant Madison Square Garden won’t let AT&T and Verizon carry the HD versions of MSG and MSG+, the telcos have said. Representatives from all four companies met with Media Bureau and Office of General Counsel chiefs about the ruling on Cablevision v. FCC earlier this summer (CD July 5 p4).

In Hawaii, Time Warner Cable faces a demand from the dominant telco there for access to all programming on its RSN. Hawaiian Telcom Services Co. (HTSC), which got a franchise to sell video in June on Oahu, wants to carry the cable operator’s RSN. Time Warner Cable has told the telco it will “selectively sub-license certain sports events following a proposed restructuring of its RSN,” Hawaiian Telcom said in a filing (http://xrl.us/bk7px2). “HTSC has sent a demand letter to gain access to the entire RSN programming, indicating that it may file a formal complaint at the FCC if Time Warner Cable refused it such access.” The Aug. 5 deadline for Time Warner Cable’s response was delayed by the telco at TWC’s request to Monday, said Greg Vogt, representing Hawaiian Telcom.

That company is holding off filing a complaint, because Time Warner Cable must have a chance to accept or decline the offer in writing, Vogt told us. “HTSC enters the video marketplace in Hawaii as a new competitor, facing the dominant Oceanic Time Warner Cable,” his filing said. TWC has 94 percent of Oahu multichannel video programming distributor subscribers, and more than 90 percent statewide, the filing said. The telco said it has “been actively making arrangements with programmers to include [them] in its channel lineup and is moving ahead with its marketing efforts. One of the critical offerings as an MVPD on Oahu is the ability to air University of Hawaii sports programming due to the unique nature of the sports environment in Hawaii."

Time Warner Cable wants to withhold all UH games except basketball and football from Hawaiian Telcom, Vogt said. But other UH games televised on the RSN, including soccer, softball and volleyball, are very popular in the state, he said. Hawaii has no professional sports team, so such games can draw thousands of attendees, making the state unique, said Vogt and a cable lawyer not on the case. Sports other than basketball and football “are extremely popular in Hawaii,” Vogt said. “It’s different than anywhere else in the country."

"I hope that this will work,” Vogt said of prospects for getting a deal to carry the full RSN. Representatives of Time Warner Cable told him “they are taking it seriously in talking about it further within the company,” he added. The telco seems to think “it has some good arguments that would force TWC to make the Hawaii RSN available to them on fair and reasonable terms,” said a cable lawyer. “But they are uncertain on two fronts: First, how will the FCC react to TWC’s proposed restructuring of its RSN,” and how the agency will address the remand, the attorney said: “HTSC rightly recognizes that the commission has a lot of discretion in how they would handle a program access complaint ... from both a substantive and procedural perspective."

The agency doesn’t need to do a further rulemaking because of Cablevision, Hawaiian Telcom said. “Courts of Appeals decisions have repeatedly held that the Commission can proceed through either adjudication or rulemaking in implementing a statutory provision.” The cable lawyer said the telco might want to gauge whether, post-restructuring, the FCC will consider the RSN subject to program access conditions under the 2006 order approving Adelphia’s sale to Time Warner Cable and Comcast.