ACA To FCC: Don’t Mess With Program Access Rules


The American Cable Association (ACA) has urged the FCC to maintain the scope of what it calls “its competition-enhancing program access rules,” a move it believes protects the legal rights of small cable operators that seek to distribute TV programming owned by rival pay-TV distributors.

“Program access rules are essential to the competitive position of independent cable operators,” said ACA President/CEO Matthew M. Polka. “Reducing the scope of the rules for the purpose of reducing the amount of cable programming covered by the rules would result in giving the largest pay-TV distributors that own content an unfair advantage and the ability to disrupt consumer expectations.”

ACA set forth its views in comments filed with the FCC on Aug. 4 as part of a proceeding aimed at “clearing out regulatory underbrush within the FCC’s media regulations,” it said.

Developed more than two decades ago, the program access rules are viewed by ACA as “fundamental competitive tools that require vertically integrated cable operators – defined as cable operators that own satellite-delivered programming and terrestrially delivered regional sports networks — to sell that content to competing MVPDs.”

ACA has long advocated for changes to existing program access rules to fully, fairly and finally cover buying groups, such as ACA’s partner representing independent companies, the Lenexa, Kan., based National Cable Television Cooperative (NCTC).

“In today’s routine mega-mergers, vertical integration between multichannel video programming distributors (MVPDs) and programmers is very likely to continue,” said Polka, “and that’s why NCTC and other buying groups must have full access to the program access rules to fight against discrimination by vertically integrated programmers.”

ACA in its comments said it agreed that that FCC should adopt proposals that were widely supported in the record and that would reduce outdated regulatory burdens on cable operators. But, it said scaling back program access rules would be a mistake – especially within the context of a proceeding designed to provide the FCC with actionable suggestions for launching rulemaking proceedings to clear the regulatory underbrush of outdated, unnecessary and unduly burdensome regulations that have exceeded their usefulness.

ACA also said supporters of altering the program access regime presented no new facts or analysis to support a decision to re-open, as a general matter, the FCC’s settled interpretation of the scope of its authority to implement protections against unfair methods of competition or unfair or deceptive acts and practices.

In its comments, ACA also called on the FCC to reject requests for substantive changes to the retransmission consent election process. ACA took a stand against a group of TV station owners that sought changes to FCC rules regarding the process by which commercial broadcast stations elect must carry or retransmission consent status.

Specifically, ACA asked the FCC to reject a proposal by CBS, Disney, 21st Century Fox and Univision to allow broadcasters to notify MVPDs of their retransmission consent or must-carry elections via electronic means and not have to place a copy of each election in their online public inspection file. Likewise, ACA opposed Nexstar’s request that would switch the default election from must carry to retransmission consent.

ACA believes the rules provide key legal protections that would be weakened by the “reforms” advocated by these TV station interests. ACA pointed out that a broadcast station’s election of retransmission consent or must carry triggers legal consequences for cable operators and broadcasters alike. Whether a broadcaster elects retransmission consent or must carry – and the cable operators’ ensuing obligation for carriage of those signals or negotiation for carriage – is too significant for the parties involved not to be delivered via certified mail, which is a proven and reliable method.

In opposing Nexstar’s request to make the default carriage retransmission consent, ACA said making must carry the default election allows a cable operator, if necessary, to proceed to retransmit a local television signal without interaction with the broadcaster and will help those smaller broadcasters that have historically elected to assert their mandatory carriage rights.

With a change in the default election, a broadcaster that does not provide notice on time would forfeit its must carry rights and be forced to expend administrative and financial resources to negotiate and sign a contract expressly to grant retransmission consent in order to maintain carriage on a cable operator’s system.