Despite considerable opposition - including that of CWA and Speed matters - the FCC unanimously allowed the Program Access Rules enacted by Congress 20 years ago to expire. The rules require operators that own programming to make that content available to rival pay TV distributors such as satellite broadcasters.
FCC Commissioner Julius Genachowski issued a terse statement on the matter:
"The FCC is focused on promoting competition and protecting consumers in the evolving video market. Today's unanimous decision enables the FCC to continue preventing anticompetitive video distribution arrangements through a legally sustainable, expeditious, case- by-case review."
At the same time the other commissioners issued statements. That of Commissioner Mignon Clyburn tried to reassure consumers and program developers. She said:
"While the exclusive contract prohibition will indeed sunset, and the opportunity for discriminatory and exclusive dealing will still exist, the language of this rulemaking will seek to end the ability of a defendant in a program access dispute to prolong the FCC's adjudication timeline with time-consuming dilatory maneuvers."
The imposed timeline means that anyone seeking to bring a case of programming discrimination will have a maximum of six months to reach an agreement. Said Clyburn, "It is my hope that such a timeline will get rid of the uncertainty, expense, and frustration that comes with prolonged litigation before this agency, and resolution within six months will allow unsuccessful complainants to evaluate their options and proceed accordingly."
Commissioner Jessica Rosenworcel noted that the Order contains a presumption that withholding "must have" regional sports programming hinders competition. She warned that the "Commission must keep a watchful eye on the evolving marketplace and be ready to take action if the processes we adopt today do not provide consumers with the safeguards they need and deserve."
The expiration comes as a disappointment to workers in the industry, as well as subscribers. As CWA said to the FCC on October 3, "There is an essential link between job-creating investment in broadband networks and access to must-have programming. Video revenues are critical in providing companies with a return on the tens of billions of dollars they are spending to upgrade their broadband networks."
In response to the FCC's action Senator Jay Rockefeller (D-WV) said that he was " reviewing the FCC's action today very carefully." He did, in fact, put the FCC on notice:
"As recent hearings in the Commerce Committee have demonstrated, consumers still face ever-escalating rates and little power to address them... if this new process does not deter anticompetitive behavior that harms consumers, Congress will need to consider whether it should restore appropriate safeguards."
Statement of Chairman Julius Genachowski (FCC release, Oct. 5, 2012)
CWA letter (Oct. 3, 2012)
Rockefeller on FCC Action to Sunset Program Access Rules (4-traders.com, Oct. 5, 2012)