The FCC has allowed rules forcing owners of regional sports networks to provide them to competitors, but left in their place a requirement to negotiate in good faith for other to carry the programming. The ACA didn’t like it but said it could have been worse, while one of the authors of the regs doesn’t like it and is examining the new regimen.
Rep. Ed Markey (D-MA) did not want the sunset, and had the following to say about an FCC Report and Order and Notice of Further Proposed Rulemaking that puts the sunset in place: “Although the Commission is putting in place new safeguards to substitute for the program access rules, it is unclear whether these requirements will provide consumers with the level of protection that is still needed in the video distribution marketplace. As the principal House author of the Cable Act of 1992, I believe that strong protections against anti-competitive behavior are still necessary, and I look forward to continuing to work to ensure that today’s decision does not tilt the playing field against consumers and choice.”
The American Cable Association’s Matt Polka believes the new safeguards have promise, even if the entire proceeding is less than desirable from his perspective. He stated, “ACA is disappointed that the FCC decided to permit the prohibition on exclusive contracts to sunset, but it appreciates the FCC’s willingness to adopt some modifications to the Section 628(b) unfair practices complaint process to make it less burdensome for multichannel video programming distributors (MVPDs).
“In particular, the FCC established a rebuttable presumption that an exclusive contract for a cable-affiliated, satellite-delivered regional sports network (RSN) would significantly hinder the ability of an MVPD to provide a competitive service without such programming. ACA is also pleased that the FCC made clear that a selective refusal to deal, particularly with regard to cable overbuilders and new entrants, can be a violation of the program access rules’ prohibition on discrimination.
“Although ACA thinks the outcome is less than ideal, ACA is hopeful that the FCC’s confidence in the functionality of the section 628(b) process, along with its additional safeguards concerning exclusive contracts, will send a strong signal to cable-affiliated programmers to not even attempt exclusive deals for must-have programming — whether it be RSNs or highly rated national cable networks — because the process will always lead to a finding that these deals are unfair and harm consumers and competition.”