ACA: Program Access Rules Remain Vital

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The American Cable Association told the Federal Communications Commission on Monday that its program access rules continue to be a "vital" way of preserving competition, and need to have even more teeth put in them.

In reply comments on the FCC's review of those rules, ACA said that other cable operators have it wrong when they argue that there is no longer a need to ban exclusive programming deals between vertically integrated programmers and their affiliated operators.

"The Commission's own data shows that the number of top 20 satellite delivered national programming networks, and regional sports networks (RSNs) controlled by cable-affiliated programmers actually increased between 2007 and 2011," ACA said. "This demonstrates that the ability of cable-affiliated programmers to disadvantage competitors of their cable operator affiliates has, if anything, increased since the last sunset review."

The FCC has to periodically renew the program access rules or they sunset automatically.

ACA diverges from the National Cable & Telecommunications Association on the sunsetting of the provision. In its comments in June, NCTA said the FCC should allow the rules to go away, citing vigorous and robust competition and arguing that vertical integration is no longer a threat.

ACA not only said the rules should be maintained, but added that the FCC should modify them "so that unaffiliated MVPDs will have the full range of protections that Congress intended, whether they purchase programming directly or through a buying group." According to ACA, the rules allow a vertically integrated programmer to charge inflated fees to affiliated and unaffiliated MVPDs because the former is just an internal transfer of funds.

The FCC voted in 2007 to extend the rules five more years, with the deadline for renewal coming up in October of this year. Without that renewal, the rules sunset per congressional directive.

The program access rules require that cable operator-owned programming networks be made available to satellite and wired competitors.

In 2010, the U.S. Court of Appeals for the D.C. Circuit denied a Cablevision challenge to the program access rules, saying that the FCC had not been arbitrary and capricious to renew the rules in 2007, but also saying that by the 2012, it might be time for the ban on exclusive contracts to end.

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