News

Cablevision Takes on FCC

4/19/2010 12:01 AM Eastern

Washington — Cablevision
Systems has quietly challenged
the Federal Communications
Commission’s decision to close
an exemption that has allowed
cable operators to withhold
some programming from their
competitors.

The Bethpage, N.Y.-based cable
operator has petitioned the
U.S. Court of Appeals for the D.C.
Circuit to reverse the FCC’s decision
to end the terrestrial exemption.
Under that exemption,
terrestrially delivered networks
were excluded from the agency’s
program-access regime, which
mandates that any cable network
in which a distributor has a
financial interest must be made
available to that distributor’s
competitors.

According to a copy of the petition
obtained by Multichannel
News
, Cablevision’s appeal is
based “on the grounds that the
Order exceeds the Commission’s
jurisdiction and authority; is contrary
to constitutional right; violates
the Communications Act of
1934, the Administrative Procedure
Act, or other statutes; and is
arbitrary, capricious, an abuse of
discretion, or otherwise contrary
to law.”

Rather than appealing the decision
with the FCC, the company
went straight to the D.C. Circuit,
according to a source. The petition
was filed March 15; a Cablevision
spokesperson had no
comment.

Last year, telco Verizon
Communications filed a program-
access complaint against
Cablevision with the FCC, saying
that the cable operator should be
compelled to sell HD feeds of its
New York City-area MSG and MSG
Plus regional sports networks to
the telco for its FiOS TV multichannel-
video service. AT&T has
filed a similar complaint to force
Cablevision to make the channels
available in Connecticut.

The FCC ruled back in January
that cable operators who do not
share their owned terrestrially-
delivered regional sports networks
with competitors would be
presumed to “hinder significantly”
multichannel-video competition
and held in violation of
FCC rules against unfair acts or
practices. They get to rebut the
presumption, but the FCC majority
made clear that it was taking
action against what it saw as a
loophole for multichannel video
providers to withhold must-have
programming from competitors.

The FCC also said HD channels
would be treated as separate networks
for purposes of compliance
with the program-access rules,
preventing distributors from offering
a standard-definition feed
of an RSN while withholding the
HD feed.

Dan Brenner, a partner with
Hogan & Hartson and a former
top staffer with the National Cable
& Telecommunications Association
who has lobbied on the
issue, points out that the briefing
for the case has not started, so it
is not yet clear just what the basis
of the appeal will be.

With that caveat, he said, “there
is a fundamental jurisdictional
question raised in the case,” as
the language in the statue refers
only to satellite-delivered programming.
“And even assuming
the commission passes that
threshold, there is a question of
whether this rule is arbitrary, given
the analysis of the term ‘hindered
significantly.’ ”

Comcast, the nation’s largest
cable operator, has assured legislators
vetting its proposed NBC
Universal joint venture with General
Electric that it will not challenge
the FCC’s decision on the
exemption.

Cablevision has not been shy
about taking the FCC’s decisions
to court. It has challenged
the agency’s renewal of the program-
access rules — a case it lost
— and, earlier this year, it asked
the U.S. Supreme Court to review
the must-carry rules that compel
cable systems to carry over-theair
TV signals.

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