Time for More Access

Cablevision’s refusal to sell the HD versions of its regional sports networks in New York to Verizon could be an issue that seals the case for eliminating the so-called terrestrial loophole that lets cable companies withhold some of its programming to competitors, avoiding program-access rules established by Congress that helped make satellite TV and telco TV businesses possible.

Or at least it’s persuaded me that the program-access rules should extend to high-definition sports programming.

(For our coverage of this issue, and the Verizon and Cablevision statements on both sides, please click here. But to give Cablevision extra due, here’s what it said: “MSG complies fully with federal regulations, which do not require us to license our local HD programming to anyone. MSG is glad to have Verizon as a customer of our satellite-delivered programming, which has provided them with access to every single game on MSG and MSG Plus.”)

A tipping point for me was a comment someone attached to a Wall Street Journal online correction. The correction had to do with Cablevision’s saying it would explore options of spinning off the Madison Square Garden unit, rather than exploring a sale. The comment came from someone who cited the FiOS complaint and said he wished Cablevision would consider selling the Garden, based on that monopoly mentality.  Cablevision and CEO James Dolan, the commenter said, don’t care about New York fans.

That’s harsh, of course, but there’s a grain of truth.

Cablevision wants to use HD telecasts of the teams that play in the Garden and whose games are televised by the Garden’s networks as a competitive edge against rival Verizon, which competes head to head with Cablevision more than any other cable operator.

That means Knick and Ranger fans who, for whatever reason, are FiOS TV subscribers can’t see those games at home in high definition.

There’s a pretty severe conflict of interest here between serving Knick and Ranger fans and operating a cable business.

I live in Manhattan, as a disclosure, and get the Cablevision-owned HD sports channels on Time Warner Cable. I don’t subscribe to FiOS, which doesn’t serve my building, at least not yet.  I don’t know when or if that will become an option for me.

I realize FiOS TV customers can see the games on Cablevision-owned channels in standard definition. But high definition is the new standard, for sports fans especially. If it weren’t so important to sports fans, Cablevision wouldn’t advertise its HD exclusivity so prominently.

I’ve never had a problem with the FCC’s decision that Time Warner Cable can withhold its NY1 local news channels from satellite or FiOS. That seems fair. There are many other alternatives for local news and Time Warner Cable ought to be able to use NY1’s unique content as a drawing card. So should Cablevision with its News 12 channels.

Verizon apparently sees the value in local news programming and is starting its own local news channels.

Verizon can’t buy or start its own local NBA or NHL franchises. That’s a big difference.

Cablevision says it’s playing by the rules. That’s fine, if the FCC agrees. But if so, the rules ought to be changed.

For a contrary view, here is an NCTA “talking point” memo about why the so-called terrestrial loophole isn’t a loophole but a well-reasoned policy decision by Congress that shouldn’t be changed. It cites precedents for the FCC’s allowing terrestrially distributed programming to remain exclusive to the cable operators that own it, including Cablevision’s MetroChannels and Comcast’s SportsNet in Philadelphia. It also notes DirecTV has exclusive access to the NFL’s Sunday Ticket out-of-market package and other TV exclusives.