Sources: FCC In No Rush To Decide Comcast OVD Condition

Item Said To Lack a Third Vote At Commission

Comcast will apparently have to wait a while longer to find out whether it can get access to over-the-top programming contracts.

According to FCC sources, the commission is unlikely to take any action anytime soon on an item circulated last August affirming a Media Bureau decision that a Comcast representative should be able to get access to programming contracts under the Comcast/NBCU benchmark deal condition on access to content by online providers.

The item is only one vote away from passage, according to a source who says that both Clyburn, who circulated the item last July while acting chairwoman, and new chairman Tom Wheeler have both voted to approve it.

A source familiar with the item says the chairman has not asked the other commissioners to focus on the item and respected it to remain at two votes for the foreseeable future.

According to a source, broadcasters and other content providers have been meeting with FCC staffers, arguing against giving Comcast the contracts, arguing that they will inevitably be used anticompetitively.

The benchmark condition requires that a Comcast/NBCU programmer "provide a requesting OVD with [programming] if the OVD has an agreement for comparable programming with a peer programmer. The programming that a C-NBCU programmer is required to provide to the OVD must be on terms that are economic[ally] equivalent" to the terms the OVD has received from the peer programmer.

Comcast has said benchmark means its lawyers should be able to review the terms of those contracts so they know what "equivalent" means.

In a decision last December, the bureau agreed, saying: "OVDs that invoke the Benchmark Condition must disclose the terms of comparable peer programming agreements to the extent necessary to enable C-NBCU to carry out its obligations under the condition."

That decision had been in response to Comcast's request for clarification that if it were to provide similar terms, it would have to know what the other terms were to avoid lengthy arbitration in every case.

While Comcast had asked that the information be made available to Comcast employees, the bureau decided that it should only go to an outside entity, which the order circulated to the commissioners this week also supports.

Programmers including CBS, News Corp., Sony, Time Warner, Viacom and Disney asked the bureau to stay the decision. The bureau actually dismissed that request, and Comcast's opposition, and last March stayed the decision on its own motion.