Court Rejects Bid to Void Program Access

By John Eggerton -- Multichannel News, 3/15/2010 11:55:53 AM

Washington — The U.S. Court of Appeals for the D.C. Circuit Friday (March 12) denied Cablevision Systems’ and Comcast’s joint challenge to program-access rules that compel cable operators to make programming in which they own a stake available to competitors.

The court ruled that the Federal Communications Commission was reasonable to conclude that the rules were still necessary, but that cable’s decreased dominance could soon invalidate the prohibition.

The decision was 2-1, with Judge Thomas Griffith concurring and Judge Brett Kavanaugh strongly dissenting, saying he thought the rules concerning exclusive programming, part of the 1992 Cable Act, were discriminatory and clearly violated the First Amendment.

Kavanaugh noted that the secondand third-largest multichannel video providers, Dish Network and DirecTV, are not subject to the exclusivity ban, while No. 7 Cablevision is.

The cable operators and the FCC had squared off in the court in oral argument back in September over the FCC’s five-year extension of the program-access rules in 2007, with both sides getting some tough questions from the judges.

As this story developed on Friday, a Comcast spokeswoman said the company would not appeal the decision. Cablevision said it was considering its options.