Commisso Wants New FCC Commissioners To Take the PledgeMediacom Chairman Asks Rockefeller, Thune to Seek Commitment from Nominees Try and Fix 'Broken' Programming Market 4/18/2013 6:56 AM Eastern
Mediacom chairman Rocco Commisso has written to Senate Commerce Committee Chairman Jay Rockefeller (D-W. Va.) and ranking member John Thune (R.-S.D.) asking them to secure commitments from a new FCC chairman and commissioner that they will "promptly address the broken video programming marketplace."
Their committee holds the nomination hearings for new commissioners.
FCC chairman Julius Genachowksi is likely presiding over his last meeting today (April 18) and Republican Robert McDowell has recused himself from decisions as both prepare to exit in the next few weeks.
Commisso argues that Genachowski and his predecessor, Kevin Martin, both dodged the issue by contending the FCC lacked authority.
"In our view, the Commission has used its assertion that it lacks the authority to take effective action as an excuse for doing nothing," Commisso wrote.
Commission pointed to commission inaction on a pair of proceedings, calling it an unconscionable disservice to consumers.
"It has been over five years since chairman Martin initiated a proceeding regarding the programming industry’s bundling practices," he said. "It has been three years since chairman Genachowski first solicited comment on petitions seeking reform of the retransmission consent rules."
Commisso contends he has hired good lawyers who argue that the FCC does have the authority, and pointed in the letter to statements from the late Sens. Daniel Inouye and Ted Stevens, former chairs of Senate Commerce, that the FCC had the power under the 1992 Cable Act to take action to protect consumers in retrans battles.
Commisso was referring to a letter the Senators sent to the FCC in 2007, during a retrans impasse between Mediacom and Sinclair in which they said that the FCC had the authority to mandate arbitration. They "strongly" urged the FCC to step in, at least to mandate carriage duriung the impasse. The commission did not, and under Genachowski has also indicated it lacked the authority to step in to mandate carriage or arbitration.
The FCC's attorneys have maintained that their authority is limited to enforcing good faith negotiations, and under Genachowski proposed to better define what those are. But no action was taken on that open item. But the chairman has made it clear that the FCC is reluctant to insert itself in what he sees as free market negotiations. Cable operators, including Commisso's company, view them as being tilted toward broadcasters, given the must-carry/retrans regime and broadcasters' abiliy to negotiate payments for multiple stations in the market via joint operating agreements.
Commisso said the FCC has done nothing in the face of "unchecked increases in sports programming fees, extortionate demands for retransmission-consent payments, and coercive wholesale bundling tactics."