The Federal Communications Commission under Julius Genachowski is not letting program-access regulations go down without a fight.
The agency — in the wake of the court’s smackdown of the commission’s cap on how many U.S. pay TV subscribers any one provider may serve — disagrees with contentions that changes in the marketplace had also obviated the need for a ban on exclusive contracts between cable operators and the channels they own.
The FCC is preparing to face off against Comcast and Cablevision Systems in oral arguments Sept. 22 in the U.S Court of Appeals for the D.C. Circuit, the same court that last month ruled the agency’s attempt to justify the 30% cap on any one operator’s penetration of U.S. pay TV subscribers was arbitrary and capricious.
Competition in the video marketplace “has not eliminated the need for the exclusivity prohibition,” according to the FCC. The commission, under former chairman Kevin Martin, back in 2007 renewed the program-access rules for another five years — until 2012.
Satellite-TV operators and telephone companies were able to develop into viable competitors only after Congress barred cable-only exclusive contracts, the agency said in its response to the court Tuesday. It was that very competition that the D.C. Circuit found decisive in voiding the 30% cap.
The FCC also argued in a Sept. 15 court filing that the increase in networks and the decline in the percentage that are cable-owned do not undermine the decision to keep the rules in place.
“A competitor’s access to a variety of new and niche networks cannot compensate for the loss of core cable-owned programming that many subscribers insist upon receiving,” it said.
Verizon, AT&T and Dish Network also communicated support for the FCC to the court. They said that unlike the record in the 30% cap case (Comcast v. FCC), the commission had evidence “that cable operators continue to use their hold on 'must-have’ programming … to hobble the competition.”
At a House Judiciary markup of the SHVURA bill (see story, this page), Rep. Sheila Jackson Lee (D-Texas) and committee chairman John Conyers (D-Mich.) said they would work on language to add to that bill supporting program access.
Lee said she wanted to work with Conyers on an amendment that deals with reaffirming or establishing programming diversity. Conyers said he would be “delighted” to work with Jackson on the amendment.