Cablevision Loses Program Access Challenge for Second Time in As Many Days
Cablevision lost a challenge to program access decisions against the company and its former regional sports network unit. Thursday’s loss was the second defeat in as many days. The full FCC upheld twin Media Bureau orders from September. The cable operator and Madison Square Garden LP, Cablevision’s former regional sports network unit, were required to provide two New York RSNs in HD to the biggest two telcos. The full commission orders had been expected (CD Nov 7 p7), though they weren’t voted on in time for the 2nd U.S. Circuit Court of Appeals to hear oral argument Wednesday on Cablevision and MSG’s challenge of the bureau’s orders. Later that day, the 2nd Circuit denied the stay request (CD Nov 10 p15).
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After a brief delay in voting for the new items, Commissioner Robert McDowell approved them and so they were adopted unanimously. Some other FCC members have voted for the full commission orders before McDowell, agency officials had said. He had dissented last year to the order which expanded the ways the agency could apply program access rules, although AT&T and Verizon’s complaints had been made under earlier rules. Still, the new rules bolstered the telcos’ cases.
Madison Square Garden did get a delay of an additional 11 days to Nov. 25 from the full FCC before giving MSG and MSG+ in HD to AT&T and Verizon, which already get them in standard definition. “In order to provide sufficient time for compliance, we grant MSG 15 days after release of this” order “to provide the subject programming to AT&T,” one of the new orders said. That’s “unless the parties’ agreement provides MSG a longer time period,” it said. Another order for Verizon said the same. The orders dismissed as moot Cablevision and MSG’s requests for stay of the bureau’s program access decisions.
The channels at issue have games of New York’ Knicks, Rangers and Islanders, the New Jersey Devils and the Buffalo Sabres. “The record further shows that a significant percentage of consumers in the New York” Designated Metropolitan Area and Buffalo “DMA considered watching a sports team they closely follow to be important in deciding who to buy TV from,” said the order to Verizon, similar to the one to AT&T. “The Bureau’s reliance on additional evidence put forth by AT&T supports the conclusion that withholding HD RSN programming in this instance impacted a meaningful number of consumers and thus resulted in ’significant hindrance,'” to a rival to Cablevision, said the order to AT&T, resembling the one to Verizon.
"The Bureau was under no obligation to define the outer boundaries of what constitutes a ‘meaningful number’ of consumers in order to decide that the hindrance was ’significant’ on the particular facts of this case,” said the order to AT&T. “The Bureau’s finding is fully consistent with (and supported by) the Commission’s prior determination that withholding of HD RSN programming is rebuttably presumed to impact a meaningful number of consumers and thus to result in ’significant hindrance.'” It noted that the U.S. Court of Appeals for the D.C. Circuit partly upheld last year’s program access order for all channels affiliated with cable operators.
AT&T and Verizon are both “pleased” with the FCC decisions, their spokesmen said. Both said they're looking forward to providing the programming. MSG declined to comment. Under the September bureau orders, the defendants had been required to strike deals with AT&T and Verizon for the RSNs by Oct. 22, and for carriage to begin Nov. 14.
The fresh FCC orders continue “to disregard the facts,” a Cablevision spokeswoman said. “We are considering all of our options after today’s decision.” The evidence on record at the agency “clearly demonstrates that there has been no competitive harm to the nation’s two largest phone companies as a result of not having two HD channels they already receive in SD,” the spokeswoman said. “In markets like New York with as many as five video providers, the only thing this decision does is discourage companies from investing and innovating, which hurts both fair competition and consumers.”