A draft order narrowing the cases when cable-affiliated channels can be withheld from pay-TV providers offers no single test to determine when competitive harm has been caused, FCC officials said. They said the item instead provided several examples of ways cable competitors can show that channels’ being withheld has harmed them, so they can gain access to programming exempted from mandatory sharing under what’s called the terrestrial loophole. The order, drafted by the Media Bureau, was circulated to commissioners Wednesday, as expected (CD Dec 15 p8).

As expected, a draft order addressing the terrestrial exemption to the FCC’s program access rules is to be circulated among the commissioners Wednesday, an FCC official said (CD Nov 23 p3). The exemption has allowed pay-TV distributors who own programming networks to withhold them from distributors if the programming never touches a satellite. The order is not expected to eliminate the exemption outright, pay-TV industry lawyers said.

Antitrust review of Comcast’s purchase of a controlling stake in NBC Universal probably will center on defining the market for the combined company’s broadcast and cable programming, said a wide range of industry lawyers and officials we interviewed. Whichever agency gets the matter, the Federal Trade Commission or the Justice Department, probably will look at the merged company’s TV stations, NBC and Telemundo broadcast networks and cable channels, they predicted.

The cable industry’s stance that rules governing deals between broadcasters and cable operators don’t work is unlikely to change because Comcast is buying control of NBC Universal, NCTA President Kyle McSlarrow told an industry luncheon Wednesday. Retransmission consent continues to be an area of interest for the group and that’s unlikely to change even though NCTA member Comcast is buying broadcast-TV network NBC, he indicated. That doesn’t mean there won’t be further disputes over pay-TV carriage of stations, he said at the Media Institute.

The FCC should soon have enough information on the market for video plug-and-play devices to issue a notice of proposed rulemaking (NPRM) instead of the notice of inquiry (NOI) sought by the NCTA (CD Dec 7 p7), a CEA official said. “We don’t agree that this first needs to go to an NOI,” CEA Vice President Jamie Hedlund told us Monday. “The commission should be able to move quickly to a NPRM.” After collecting comments, due Dec. 21, on a public notice about the market, the commission will have enough information in the record to “work with in fashioning tentative rules,” he said. “It really is in cable’s interest to move quickly, because consumers are going to move without cable. They are snapping up Internet-connected devices like the Roku [digital player] … and bypassing cable. And if cable delays long enough, consumers will continue this nascent trend of cutting the cord altogether.” Meanwhile, a lawyer with broadcast clients criticized the FCC’s video-device and spectrum notices. “There seems to be a rush to judgment,” David Oxenford of Davis Wright wrote Sunday on the law firm’s blog. The commission is asking “pointed questions where it is suggested that answers have already been reached, and giving interested parties such a short time frame to answer such fundamental questions that the Commission cannot possibly expect searching, detailed responses,” he said.

Comcast’s agreement to buy a controlling stake in NBC Universal is bound to raise scrutiny by legislators and regulators on broadcast and cable industry practices, said supporters and opponents we surveyed. The companies expected the deal, announced last week, to draw a year-long regulatory review (CD Dec 7 p2). It may also draw attention to Internet issues including subscription video, and consumer electronics matters such as CableCARDs, executives said.

The cable industry wants the FCC to start an inquiry into the market for video devices that’s apart from an examination by broadband staff of CableCARDs and other devices sold by retailers that connect to pay-TV services. NCTA President Kyle McSlarrow made the request Friday in a letter to Media Bureau Chief Bill Lake and Carlos Kirjner, senior broadband advisor to Chairman Julius Genachowski. It came a day after the Omnibus Broadband Initiative (OBI) issued a wide-ranging public notice asking whether a standard can be developed to let devices connect to all pay-TV providers, not just a single company’s service (CD Dec 4 p12).

The FCC’s public notice on spectrum reallocation (CD Dec 3 p1) seeks more information than broadcasters can file by the Dec. 21 comment deadline, said attorneys for TV stations. “If you've got a TV license, you've got a problem - and very little time in which to make your case,” Harry Cole wrote on the Fletcher Heald law firm’s blog. “Talk about an inquiry of staggering scope and complexity, with vast implications for the economy and the very cultural fabric of our society!” Nineteen days “hardly seems adequate for a proper, informed discussion on an issue of this magnitude,” Brendan Holland wrote on the Davis Wright blog. The issues raised in the commission’s notice “are among the most significant it has ever attempted to address,” he added. Other industry figures questioned whether the commissioners can deal before the National Broadband Plan is due Feb. 17 with any specific staff proposals for reusing TV spectrum. The FCC’s members were told about the spectrum notice and other notices for the broadband initiative before they went out, but they weren’t closely involved in their drafting by the staff, a commission official said. That’s been standard practice for such notices, agency officials said. The release of the spectrum document was delayed from November while staffers finished work on it (CD Dec 1 p1).

A law firm with radio and TV clients again asked the FCC to reverse course on a media ownership form’s requirement that filers use commission registration numbers whose disclosure has raised privacy concerns among broadcasters (CD Nov 20 p7). “In their apparent, and as yet unexplained, rush to adopt changes to the Form 323, the Commission has failed to comply with the Administrative Procedure Act,” said a late Monday petition for reconsideration by Fletcher Heald. “The Commission has failed to provide drafts of the revised Form 323 to the public in a timely manner and has failed to provide notice of, and the requisite opportunities for comment on, the proposed changes to that Form.” Media Bureau staffers have been revising the form, not yet publicly available at our deadline, but expected to be out soon. A bureau spokeswoman declined to comment. The law firm filed the petition as a preventative measure so the commission can’t claim that issues relating to Form 323 weren’t raised now and so can’t be brought up in the future, Fletcher Heald attorney Harry Cole told us. “We filed today because this is the 30th day after the FCC’s last order in the Form 323 matter.”

FCC staffers are thought to be preparing items on at least six media-related issues as the commission looks beyond the Feb. 17 deadline for the National Broadband Plan, commission and industry officials said. The first expected to be released publicly is an order that Media Bureau staff are working on to allow radio stations to raise their digital power levels (CD Nov 10 p8), several officials said. Most of the other items -- some which have been contentious outside the FCC -- are expected to be released this quarter or next, they said.