Draft Program Access NPRM Posits Options for FCC Rules After Sunset
The FCC has some options to prevent cable operator withholding from multichannel video programming distributor rivals the channels the operators own when a program access exclusivity ban sunsets Oct. 5, a draft notice of proposed rulemaking says, according to agency officials. They said the Media Bureau NPRM that’s tentatively set for a vote at the March 21 meeting, but may be approved before then, reaches few if any conclusions about how the agency should proceed. Instead, the item seeks comment on several scenarios for program access rules post-Oct. 5, when their five-year extension expires, commission officials said.
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Options range from doing away with the rules entirely to allowing case-by-case waivers, the officials said. They said the draft also asks about keeping the anti-exclusivity rule for popular channels with local sports or other content that can’t be replicated by MVPDs that don’t own the cable-operator affiliated channels at issue. The draft asks about whether and for how long to continue applying the current program access across-the-board ban on exclusive deals between a cable operator that owns a channel and that network when the programming is distributed by satellite to MVPDs which in turn send it to customers, FCC officials said. A bureau spokeswoman declined to comment.
One scenario the draft NPRM asks about is a full sunset of the exclusivity ban while relying on other program access rules that don’t expire, FCC officials said. They said those rules, authorized under Section 628 of the Telecom Act, allow MVPD complaints of cable-operator affiliated channel withholding to be dealt with individually. There’s also a ban on discrimination in carriage deals under Section 628(b) and a ban on an operator that owns a network exercising undue and improper influence on such accords, the officials noted.
The draft rulemaking asks about scaling back the current anti-exclusivity rules, commission officials said. They said an option the NPRM lists is whether programming now subject to the ban could be exempted on a case-by-case basis. An option also asked about is whether the commission should keep the withholding ban for regional sports networks affiliated with cable operators and other programming that can’t be replicated, FCC officials said. The various options listed in the rulemaking aren’t endorsed in the draft, they said.
The commission in 2010 extended program access rules to content owned by cable operators that’s not distributed by satellites, setting up a process for complaints to be reviewed individually. The current NPRM doesn’t ask about ending the terrestrial loophole portion of the current across-the-board program access rules for cable-operator affiliated programming, agency officials said. They said the draft rulemaking notice also doesn’t appear to ask about expanding the program access rules to cover non-cable MVPDs that also are affiliated with channels.