FCC Votes To Close Terrestrial RSN Exemption
Count Is 4-1; McDowell Expects To See Court Challenge

John Eggerton
Multichannel News

1/20/2010 12:25:44 PM

http://www.multichannel.com/article/445064-FCC_Votes_To_Close_Terrestrial_RSN_Exemption.php


Cable operators who do not share their owned terrestrially delivered 
regional sports networks with their competitors will be presumed to be 
in violation of Federal Communications Commission rules against unfair 
acts or practices.

Although they will get to rebut the presumption, the FCC majority made 
it clear Wednesday it was taking action against what it saw as a 
loophole for multichannel video providers to withhold must-have 
programming from competitors.

As expected, the FCC Wednesday voted to close, or at least narrow, the 
exemption of terrestrially-delivered networks from program access rules.

The vote was 4-1, with FCC commissioner Meredith Attwell Baker joining 
the Democratic majority and Republican Robert McDowell dissenting with 
the advice that he expected to see the decision challenged in court.

Media Bureau staffer David Konczal said there were three reasons for the 
FCC's action. He said cable continues to have incentive and ability to 
engage in unfair practices; 2) that there is evidence of withholding 
programming, including must-have cable-affiliated regionals sports nets 
in San Diego, York, New York and Philadelphia; and 3) that there is 
evidence that such withholding depresses satellite subscribership, and 
thus reduces competition.

The commissioners voting for the order billed it as a consumer-friendly 
move to boost competition, while McDowell said that it was an overreach 
of authority whose ends might be laudable, but whose means were legally 
suspect. "The FCC is not Congress; we cannot rewrite statue," said McDowell.

Congress confined its access mandate to vertically integrated program 
nets to satellite-delivered programming, but the FCC Wednesday said it 
had authority under the "unfair acts and practices" section of its rules 
to create the complaint mechanism for terrestrially delivered nets.

MVPDs will not be able to deliver a standard-definition version of a 
regional sports network and withhold the HD version as a way of 
complying with access requirements. The HD version will be treated as a 
separate service for purposed of filing program access complaints.

The access conditions applied to Time Warner and Comcast in the Adelphia 
mergers continue in force.

Dish Network and Verizon FiOS both were pleased by the FCC vote.

"This is a big-time victory for television sports fans," said Verizon 
senior vice president of federal regulatory affairs Kathleen Grillo in a 
statement. "The FCC's decision to make must-see regional sports 
programming, including high-definition feeds, presumptively available to 
competitors, puts viewers in the driver's seat. This ruling means that 
consumers will no longer have to stick with their incumbent cable 
provider in order to watch local teams in high- definition."

"Dish Network congratulates the FCC for delivering consumers a double 
victory: First, sports fans in Philadelphia and San Diego will soon have 
a choice of pay-TV providers; second, consumers can no longer be held 
hostage during a contract dispute between cable programmers and video 
distributors," the company said in a statement. "DIish Network thanks 
chairman Genachowski for his leadership and for standing up for 
consumers and competition."

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George Antunes, Political Science Dept
University of Houston; Houston, TX 77204
Voice: 713-743-3923  Fax: 713-743-3927
Mail: antunes at uh dot edu

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