Cable Cases Fill D.C. Circuit Docket

DUAL MUST-CARRY, TENNIS MATTERS UP FOR CONSIDERATION
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WASHINGTON — Communications lawyers are beating a path to the federal courthouse here this month over court cases involving a veritable briefcase full of cable issues, including program carriage, program access and the recently deep-sixed dual must-carry mandate.

A look at what was on the docket last week:

RIGHT THE FIRST TIME. Federal Communications Commission lawyers told the U.S. Court of Appeals for the D.C. Circuit last week that the agency was justified in dropping a requirement that hybrid (digital/analog) cable systems provide must-carry station signals in analog format. Broadcasters think of it as the viewability rule; cable operators consider it a dual-carriage mandate.

The FCC asked the court to reject a National Association of Broadcasters petition to restore the mandate.

In its filing, the FCC called its decision consistent with the statute and agency discretion to interpret that statute. It said the interpretation was reasonable and contended it gave adequate notice of considering a device-based approach. (MSOs must make boxes converting digital signals to analog ones available at low or no cost.)

The FCC “determined … that the record evidence did not support the claims of broadcasters that allowing the viewability rule to expire on schedule would threaten the viability of must-carry stations.”

Last June, the FCC decided cable operators could fulfill the obligation to make must-carry stations available to all subscribers by offering low or no-cost converters, rather than continuing to require most MSOs to deliver both analog and digital signals. The FCC adopted the rule in 2007 to coincide with the 2009 digital-TV transition, setting it to “sunset” three years later.

Broadcasters had been pushing the FCC to extend the dual-carriage requirement another three years. Cable operators want to use the bandwidth to add capacity for other services such as broadband, which the FCC has been promoting on multiple fronts.

SKY ANGEL VS. C-SPAN. Over-the-top video provider Sky Angel urged the same D.C. federal appeals court to deny C-SPAN’s request to toss out Sky Angel’s antitrust complaint over access to programming from the cable-operator- funded public-affairs network. Sky Angel sued after losing access to C-SPAN programs.

Sky Angel replied that the court has jurisdiction, that cable operators have monopoly power over the relevant market and that an antitrust claim is warranted and antitrust injury is demonstrable. The company cited “lost profits, lost business opportunity, loss of the ability to effectively compete, and injury to Sky Angel’s prestige and reputation.”

C-SPAN last week said the latest filing “makes clear that there is no coherent legal theory underlying its complaint and no facts to back up any of its illusory claims. We are confident that its attempt to contort a simple breach of contract claim into a federal antitrust case will fall fl at.”

ORAL ARGUMENT, ANYONE? Lawyers last week for both sides were undoubtedly preparing for the Feb. 25 oral argument in, yes, the same D.C. court in Comcast’s challenge to the Tennis Channel decision. That was the first time ever the FCC had upheld a program-carriage complaint against a multichannel video provider.

Comcast has said it did not unreasonably restrain Tennis’ ability to compete and did not discriminate on the basis of affiliation. The cable operator also said the FCC decision violated the First Amendment and, besides, Tennis’ complaint was moot because it was filed after the statute of limitations expired.

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