Martin Balks at Commissioners’ Requests to Delay Program Access Vote
FCC Chairman Kevin Martin balked at requests from all the other commissioners to delay a vote set for Tuesday (CD Aug 23 p1) on an order extending a program exclusivity ban sought by Bells, small cable operators and satellite providers, agency officials said. They said retaining the program access rules is a high priority for Martin and he thinks they deserve a vote at an FCC meeting and not on circulation, as the four other commissioners proposed in separate requests. Martin seems eager to dispose of the order because of the Oct. 5 expiration of the ban on cable operators’ withholding from pay-TV competitors channels that the cable companies have investments in. It’s rare for a chairman not to grant a request to delay a vote, said an FCC official, but it’s the chairman’s prerogative to schedule votes.
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The commissioners want more time to study several parts of the order that would impose new rules on cable operators, said other FCC officials. At least one commissioner wants to study a rulemaking notice, to be issued with the program access order, that indirectly raises a la carte, a source said. Commissioners believe they have too much on their plate for the meeting, which has a packed agenda including Bell forbearance requests and a controversial order for wireless carriers to more precisely measure their success in locating 911 calls, agency officials said.
On Friday, Martin pulled another order from the meeting agenda. It would let cable operators take advantage of caps on some franchise-related fees when the companies’ contracts with cities expire (CD Sept 7 p2) -- not immediately, as the FCC allowed Bells at its December 2006 meeting. The order appeared to be pulled because of time constraints, said FCC sources and industry officials. The most likely outcome remains a 3-2 vote, Commissioners Jonathan Adelstein and Michael Copps dissenting. Robert McDowell seems likely to support the item, though he has concerns about the delayed deregulation given cable, said several FCC officials. New entrants seeking franchises get the benefit of the deregulation.
All the other commissioners told Martin’s office they were ready to vote by Sept. 30 on the program access order, FCC officials said. That would keep the program exclusivity ban from expiring before being extended five years, a commission official said. Agency sources said regulators want more time to study the order and don’t necessarily object to it. But delaying a vote on the order could mean that the rules lapse, because the Code of Federal Regulation says rules don’t take effect until 30 days after appearing in the Federal Register. The FCC often takes at least several days to issue the full text of orders after votes, and then submits the document for publication. A waiver of the 30-day rule is possible in some circumstances.
Commissioners want to study new program access complaint rules in the proposed order circulated several weeks ago by Martin’s office, agency sources said. Rules deserving further study include letting parties in carriage disputes request nonbinding arbitration within 20 days of making a complaint, and a clause preventing the cutoff of channels during contract disputes, an FCC official said. Other issues that may bear further eighth-floor examination include provisions letting Bells, satellite providers and other pay- TV companies seek a wide range of documents in evidence discovery on complaints, the official added. Under the order, carriage contracts between a channel allegedly being withheld and other pay-TV companies could be sought. EchoStar, Verizon, the American Cable Association and others support extending the exclusivity ban. Comcast and NCTA opposed it.
Cable officials seemed nonchalant about the potential delay. “I don’t think a delay of a couple of weeks would harm things too much,” ACA President Matt Polka said in an interview. “This is a jam-packed agenda.” ACA has focused on trying to get commissioners to change a DTV carriage order also set for a Tuesday vote so small cable operators won’t be hurt, Polka said.
The group wants the FCC to exempt cable systems with fewer than 15,000 subscribers or with capacity of less than 553 MHz from an order that would require operators to ensure that all subscribers get must-carry channels after the digital transition. Larger systems could get waivers from the DTV rules by showing that they face financial hardship, under ACA’s proposal. It also seeks to prevent stations electing retransmission consent from seeking cash for carriage when cable operators agree to send their analog and digital signals to subscribers. It’s unclear whether the plan will gain much support among commissioners who met with ACA officials Thursday as they also consider a DTV carriage proposal from NCTA. “The reaction we seemed to get is clear interest in our proposals,” said Polka. “Whether there will be the votes for the order, I can’t predict that better than anybody else.” - Jonathan Make