Watchdog sees the future in Cablevision/Fox dispute


Media public interest organization Public Knowledge has something to say about the dispute between Fox and Cablevision: Get used to it. And it goes on to argue that the proposed merger of Comcast and NBCU may only make the problem worse. It also said broadcasters have an unfair advantage in retransmission negotiations.

PK Legal Director Harold Feld wrote, “The Commission should not view Fox’s blocking of Cablevision customers, as a one-of- a-kind occurrence. Rather, it is a sign of things to come, unless the Commission reexamines its media ownership, merger, and retransmission consent policies.”

Noting that Fox briefly pulled online access of its programming from Cablevision internet subscribers, PK said, “…Fox’s blocking of Cablevision’s broadband customers shows that the current generation of dominant content and content delivery networks are trying to control the next. This kind of blocking, which concerns anti-competitive conduct inflicted on ISPs or end-user applications, rather than committed by an ISP, is not a ‘network neutrality’ concern as precisely understood. But network neutrality is not the end-all be-all of consumer protection, and these practices could threaten the integrity of the open Internet as much as anti-competitive behavior by telecommunications providers.” And that, PK says, is cause for the FCC to investigate.

PK says this problem will only be exacerbated by the market power wielded by a combined Comcast/NBCU, saying “…a combined Comcast/NBC would have the incentive to block customers of competing MVPDs or competing ‘over-the-top’ programming distributors independent of retransmission disputes. Alternatively, rather than block access entirely, Comcast/NBC would have strong incentive to impose discriminatory terms for access to Hulu to competing broadband access providers and MVPDs.8 Therefore, it should deny the Comcast/NBC merger, or should impose conditions that would prevent Comcast/NBC from behaving in such an anti-competitive and anti-consumer fashion.”

PK argues that media consolidation is a problem in and of itself, allowing millions of consumers to be held hostage during a single dispute, and making the internet just a new arena for giant conglomerates rather than a competitor to them.

PK also came down on the side of MVPDs when it comes to retransmission, saying that must-carry, network program nonduplication, syndicated program exclusivity, and sports blackout requirements give broadcasters the upper hand in negotiations and asked the FCC to do something about it. It said Fox’s decision to extend the battle to the internet was a further abuse of its power.

RBR-TVBR observation: There is a reason that broadcasters enjoy a certain amount of protection – it is that they also are burdened by a certain amount of regulation. MVPDs would love to do whatever they can to favor programming they have a stake in, but when push comes to shove, 99% of the local programming available to subscribers comes from broadcasters.

As long as members of Congress feel this is important – and that should be for a very long time indeed, barring localism, public interest and language requirements on FX and MTV and ESPN etc. – then PK’s assertion that broadcasters enjoy an unfair advantage does not hold water.