FCC Wait-and-See Approach Expected on Looming Program Access Questions
The FCC will probably take a wait-and-see approach to some of the questions it raised in a further notice of proposed rulemaking (FNPRM) on program access rules, agency officials and communications lawyers predicted. Along with letting its ban on exclusive contracts between cable operators and the networks they own expire Oct. 5, the agency solicited comments on several other proposals to expand some program access protections to multichannel video programming distributors seeking to license national cable channels (CD Oct 9 p1). Should the commission see competitive problems developing as a result of letting the exclusivity ban expire, the further notice could give the commission a way to reopen the issue, an FCC official said.
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Regional sports networks are “where most of the action is likely to be,” said Matt Wood, policy director for Free Press, which unsuccessfully pushed the commission to keep the exclusivity ban. Though the FCC has plenary power to address anticompetitive behavior under Section 628 of the Communications Act and would be willing to use it, it’s uncertain what the commission’s appetite for answering some of the questions about national programming will be after the general election, he said.
"Once you don’t have rules in place that last across transitions -- and no matter who wins this election, we're likely to have a different eighth floor -- it introduces a lot of uncertainty in the landscape for competitive distributors,” Wood said. Comments on the further notice are due 30 days after its publication in the Federal Register, a development that had not occurred by our deadline Friday. That will put the pleading cycle well after the election.
The questions raised in the further notice about the definition of buying groups are less controversial and seem further along than those regarding access to national programming networks, FCC officials said. That issue was raised earlier in the exclusivity ban rulemaking process, they said.
At a minimum, the questions in the FNPRM will put some pressure on vertically-integrated cable operators to treat competitors fairly or risk further regulation, an industry attorney who advocated for the commission to keep the ban said. “Having this open proceeding is helpful,” but not as helpful as adopting some of the presumptions raised in the FNPRM, the lawyer said. A spokesman for the chairman’s office had no immediate comment.