A familiar Hill face, though in a powerful new post, was calling on the FCC to weigh in on retrans this week, recalling a similar request when Fox and Cablevision were battling it out in 2010. In that case, the FCC did reach out to both sides to justify the good faith of their negotiations.
Former House Communications Subcommittee chairman and now Senate Commerce Committee member Ed Markey (D-Mass.), wrote FCC acting commissioner Mignon Clyburn this week to ask that the FCC step in to get the parties to the table. "I request that the Commission take action to bring the parties together so these negotiations can be concluded in an equitable and expeditious manner," he wrote.
He said he was not taking sides on the dispute, saying those were contractual relations between private parties.
Markey was particularly concerned about reports that CBS was not allowing access to its Internet video by Time Warner Cable broadband customers.
He pointed out that he was primary author of the Cable Act in 1992 and the author of the first network neutrality bill in the House, and said blocking access to Internet content was an anti-consumer result the FCC should \investigate, suggesting it was a case of consumers losing access to the Internet content of their choice, which the FCC's Open Internet order suggests is a network neutrality violation.
The FCC's Open Internet order prevents ISPs from blocking such access, but in this case it is the ISP that is not getting access.
It is not the first time an online access issue in a retrans dispute has prompted Markey to call for FCC action.
Back in 2010, then Rep. Markey wrote an extremely similar letter to then FCC chairman Julius Genachowski about a high-profile Fox/Cablevision blackout, also involving New York, pointing out that he had authored the Cable Act, saying he was not weighing in on either side because they were contractual relations and saying he was concerned about reports that Fox was blocking Cablevision sub access to Hulu content.
That letter was written before the FCC's Open Internet order, so Markey invoked the FCC's then-uncodified Broadband Policy Statement of 2005 which said that consumers should have access to the lawful Internet content of their choice." (The FCC's Open Internet order essentially took those same principles and made them rules, though Verizon is challenging them in court.
In that case, Genachowski did step in to the extent that Media Bureau Chief Bill Lake asked both sides to explain how their negotiations square with the law that requires those negotiations to be "in good faith." The FCC under Genachowski interpreted its powers as limited to insuring those good faith negotiations.
Lake also asked each side to provide any evidence against the other side if they had it. Both sides responded
A spokesperson for the acting chairwoman had no comment at press time on whether Lake, who is still Media Bureau chief, would be similarly reaching out for some answers this time around.