Leased Access Order Rescind Seen Facing Uncertain Reception

The FCC last month dismissed a United Church of Christ 2008 request that the agency override an Office of Management and Budget (OMB) notice blocking implementation of the leased access rules adopted earlier that year (see 1804260037).

A cable official said leased access use by programmers was already dwindling in 2008, and is even scarcer now, so it's tough to know whether the proposal will get much pushback from programmers. The cabler also said the industry would support rescinding the 2008 order, but it's unclear whether it's a 4-0 FCC decision. An FCC staffer also said the commissioner vote tally isn't clear, since starting over with the rules might make sense, but there also could be questions about whether the tentative conclusions could be overly onerous for programmers.

Leased access "was a very solid policy concept which never got a chance to prove itself," emailed Georgetown Institute for Public Representation lawyer Andy Schwartzman, who represented UCC. "The Commission strangled it at birth and resisted several efforts to revivify it."

Broadcast lawyer Jack Goodman said it's unclear how much of an LAP community still exists and what its response might be. He said it's unclear whether it's a 4-0 vote on the FNPRM, especially since no current commissioner was on the commission when the agency last looked at the rules. He said if it does rescind the 2008 order, the FCC will likely quickly follow with a motion to dismiss a 6th U.S. Circuit Court of Appeals' stay of the order.

Vacating the 2008 leased access order would give the FCC "a clean starting point" from which it could consider modifying the rules, the FNPRM said. It cited comments from the media modernization proceeding indicating that, given the time that's passed, re-evaluating the leased access rules is appropriate. It also said OMB pointed to multiple ways in which the 2008 order's requirements weren't consistent with the Paperwork Reduction Act.

The FNPRM invites comment on the general state of the leased access marketplace. It also proposes that cable operators only have to respond "to a bone fide request" for leased access information from a programmer, saying currently small operators only have to respond to bona fide requests while larger systems have to respond to any request for leased access information. It also asks about giving cable operators more than the 30-day window to respond to requests, such as 45 days as suggested by NCTA. It asks about allowing cable operators to require a "nominal" application fee or deposit from LAPs and about modifying its procedures for tackling leased access disputes.

The FNPRM doesn't have a proposal on leased access rates, which was an area of heavy contention between cable and LAP interests in 2008. The FNPRM does ask one open-ended question about whether the agency should adopt any new rules governing leased access rates.

NCTA in a statement said it "commend[s] the FCC for moving to re-examine some of its leased access rules. The rule changes adopted by the FCC in 2008 have never taken effect, having been both stayed by the courts and disapproved of by OMB. Meanwhile, the video marketplace of competitive multichannel video programming distributors and online video is vastly different from what existed a decade ago, much less from when Congress adopted the leased access requirements.”

Michigan-based LAP JTV is "the model for what we think the intent of leased access was," with hyperlocal programming in an underserved media market, said President Bart Hawley, saying its viewership is higher than many traditional cable channels on Comcast's channel lineup. He said the substantial lowering of leased access fees paid by programmers, while "interesting to us," also would have lowered the barrier to entry for potential competition. He said JTV possibly will file comments in the proceeding, and any FCC revisit of the leased access rules ought to clarify how content is carried, with JTV content produced in high definition but carried on standard definition, though he hopes to eventually have it carried in HD.

LAPA's Polich said he hopes some issues aside from rates that were part of the 2008 order will find life in revamped leased access rules, such as requiring cable systems that limit channels like government access for certain areas of their footprint to provide similar service for leased access channels. He said as cable headends have been consolidated, covering multiple communities, it has become tougher to target a specific community with local programming via leased access, and buying access to the broader market might not be financially feasible. He also said cable companies are often too vague on programming insurance requirements, which can discourage leased access, and he hopes the FCC will codify insurance requirements.

Until online distribution can duplicate the immediacy and technical quality and lack of buffering of a cable channel, there's still need for leased access, Polich said. But with leased access' local programming, "We can be a friend to the cable companies," he said.

The FCC has looked at leased access "as an unwanted stepchild," and the cable industry wasn't a fan either, emailed LAPA President Charlie Stogner. He said issues raised in the 2008 order like insurance and technical matters about signal reception have needed to be discussed in meetings involving carriers, LAPers and the FCC, though that hasn't happened. He said most leased access channels provide a show once a week like religious programming. Stogner said a clean slate on leased access rules should start with meetings between programmers and operators conducted by the FCC.