News

Cablevision vs. FCC (Again)

2/14/2011 12:01 AM Eastern

Washington — Cablevision Systems will
make its case against the Federal Communications
Commission’s new program-access
rules at the U.S. Court of Appeals for the
D.C. Circuit today (Feb. 14), but that outcome
won’t have any near-term impact on the nation’s
largest cable operator.

That is because Comcast, in order to get
FCC approval for its NBC Universal merger
deal, pledged that it would abide by those
rules as a deal condition no matter what happens
in court.

RIPPLE EFFECT

If the court were to rule that the FCC overstepped
its authority — as it did when Comcast
challenged the FCC’s ruling that it violated
agency policy by blocking and degrading the
file-sharing application BitTorrent — it would
become tougher for the agency to impose program
access on other video providers than if it
remained the law of the land for Comcast.

As one veteran cable attorney pointed out
last week, FCC conditions can take on a life
of their own, like the four Interne-openness
principles from the Bell South-AT&T merger
that have since become enshrined — or will
be by midyear, barring a stay by the courts
— in the FCC’s codified network-neutrality
rules.

The access conditions placed on News
Corp.’s acquisition of DirecTV were also invoked
in and adapted to the Comcast-NBCU
joint venture. “Once the FCC writes them
down and explains why they make sense,”
the attorney said, it becomes easier to apply
them generally.

Cablevision last year challenged the
FCC’s decision to close the terrestrial exemption,
which excluded terrestrially delivered
cable programmers, primarily
regional sports networks, from the FCC’s
rule mandating that TV distributors make
channels in which they hold a financial interest
available to their competitors.

Cablevision has not been shy about taking
the FCC to court, including challenging
the its five-year renewal of the program-access
rules (it lost that one) and asking the Supreme
Court to review the must-carry rules
(it would not take the case).

HANDICAPPING THE COURT

While judges often play devil’s advocate in
oral argument, one veteran attorney — and
supporter of the rules — who has argued
before the court handicapped the threejudge
panel.

“One thing that may not be immediately
obvious,” he said, “is that two of the judges
(Judith Rogers and David Tatel) are pretty
liberal and likely to be sympathetic to
the Commission. The third judge, Thomas
Griffith, is a moderate who joined Chief
Judge David Sentelle in the March 12, 2010,
decision upholding the Commission’s extension
of the program-access rules.”