By a four-to-one vote, the FCC accepted new rules governing disputes between cable operators and other MVPD services over access to cable-owned must-have programming, setting up a case-by-case settlement framework. Republican Robert McDowell was the dissenter.
The rules are designed to foster competition and thereby empower consumers. It is also designed to be a speedy process. Generally, the programming that comes into dispute is the type that would be offered on a regional sports channel.
The rule takes the prohibition of denying access to cable-controlled satellite delivered programming and extends it to terrestrial-delivered programming, closing the so-called “terrestrial loophole.”
“The Order adopts rules permitting complainants to pursue program access claims similar to the claims they may pursue involving satellite-delivered, cable-affiliated programming,” wrote the FCC. “Because the claims involving terrestrial programming require an additional factual inquiry regarding whether the unfair act significantly hinders the complainant from providing satellite cable programming to consumers, additional time will be given to present rebuttal information.”
The FCC says it has several pending complaints involving sports networks, which may be pursued as filed or considered under the new rules under a supplemental filing once they become effective.
“Today, the Commission takes an important step in promoting competition, empowering consumers, and fostering innovation by closing a loophole in our Program Access rules,” said Chairman Julius Genachowski. “The loophole gives free reign to cable-TV operators to lock up local sports events and other popular programming and withhold them from rival providers. Locking up a much-loved local sports franchise could be game, set, match for cable competition. Consumers who want to switch video providers shouldn’t have to give up their favorite team in the process. Today the Commission levels the competitive playing field.”
Genachowski did not get a unanimous vote from the five commissioners, but he did get one Republican vote from Meredith Baker.
McDowell, in dissenting, said he agreed with the aim of the rule, but felt the FCC was overstepping the bounds of its authority and required instruction from Congress before moving ahead on this issue.