FCC Considers Small Cable’s Program- Access Proposal

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WASHINGTON — Supporters of the ban on exclusive contracts between cable operators and the programming networks they own are trying to modify the FCC’s draft order sunsetting the ban to add more protection for access to regional sports networks (RSNs), which are a central issue.

The exclusivity ban sunsets Oct. 5, and at press time, one highly placed Federal Communications Commission source said a vote was expected to come down to the 11th hour.

A series of meetings took place last week between FCC staffers and major players — including the National Cable & Telecommunications Association, representing major cable operators; the American Cable Association, representing smaller, independent MSOs; Dish Network; DirecTV; Cox Communications; and Verizon Communications — after word of the order got out. One FCC source said there were as many meetings on the Hill as lobbyists looked for help there.

FCC sources said some Democratic commissioners were concerned about the fate of RSNs under chairman Julius Genachowski’s new, case-by-case approach to complaints about withholding must-have content. An ACA proposal last week to add more RSN protections was getting some serious attention.

It is unclear how much leverage the commission’s other Democrats have over Genachowski, given that he likely has two votes — Republican members Robert McDowell and Ajit Pai — for the order pretty much as currently drafted. The general counsel’s office is said to have concerns about whether the added protections would need to be vetted in their own, separate proceeding.

The FCC draft order plans to handle RSN access complaints under the remaining rule 628(b), which was modified to close the so-called terrestrial exemption, that allowed cable operators to withhold from competitors programming networks that weren’t delivered via satellite. The draft order said there was a rebuttable presumption that withholding terrestrial RSNs was an unfair act or practice. That presumption would now apply to satellite-delivered RSNs as well.

But ACA and others are looking for more. They want a rebuttable presumption that complaints will meet the standard for a standstill, meaning cable operators would have to keep the channel on while the FCC decides the complaint.

The ACA also wants the unfairness presumption to apply to national sports programming.

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