FCC Staffers Eye How January Order Affects Program Access Cases

FCC staffers are thought to be reviewing two batches of program access complaints against cable operators in light of how a January order on the subject that became effective Friday affects the cases, industry and commission officials said. The Media Bureau seems to be taking the lead in reviewing complaints by AT&T (CD April 7 p12) and Verizon against Cablevision for withholding HD versions of two regional sports networks, they said. It’s also believed to be involved in reviewing an AT&T challenge to the bureau’s 2009 dismissal of the telco’s complaint against Cox Communications for withholding access to a channel featuring San Diego Padres baseball games.

AT&T and Verizon believe the complaints can be handled under the old rules on program access -- which cover when channels affiliated with cable operators must be made available to other subscription-video providers -- and the regulator can act now to resolve the cases, executives said. In recent filings, Cablevision and Cox have said the telcos’ cases still lack merit. Spokespeople for Cox and the bureau declined to comment. “If the phone companies complain that they are unable to compete, we are confident that we can prove that it is for a variety of reasons, none of which have to do with HD sports programming,” a Cablevision spokeswoman said. “Verizon and AT&T do not need a regulatory bailout in order to compete."

The program access order (CD Jan 21 p2) gives the bureau additional things to consider even if the complaints against Cablevision and Cox are handled under previous rules, agency officials said. FCC Chairman Julius Genachowski “has signaled video competition is a priority,” said analyst Paul Gallant of Washington Research Group. “Once the parties refresh the record to account for the January ruling, I would expect these complaints to be resolved in the relatively near-term.” The rules took effect Friday, but the Office of Management and Budget hasn’t approved some as comporting with the Paperwork Reduction Act, industry officials said, meaning those paperwork requirements aren’t in effect.

The program access order lets those with pending complaints update them, something AT&T and Verizon haven’t done or decided if they'll do, executives said. “In the interest of getting this programing, making it available to consumers more quickly, we did urge the commission to act even without the benefit of the new rules,” a Verizon executive said. Cablevision “refused to negotiate with us on any terms” to carry the two channels -- HD versions of Madison Square Garden and MSG+ -- and “there is no dispute about that at the FCC,” the executive said. “They admit they wont sell it to us.” With the program access order stating cable operator-affiliated regional sports networks are among the types of terrestrially distributed programming the FCC can force programmers to provide to pay-TV operators, “they continue to deny us the programming,” the executive added.

Madison Square Garden remains a party to the proceeding, the Verizon executive said. It had sought to be excluded because it was spun off from Cablevision (CD March 17 p21). A status conference March 16 on the complaint against Cablevision included representatives from the operator, Verizon and the bureau, the executive said. In a filing the day before, Cablevision and Madison Square Garden said Verizon “sandbagged defendants by strategically holding back its survey data from its Complaint” and filing it as a reply. “Contrary to Verizon’s assertion in this proceeding, Defendants’ Survey Materials unequivocally demonstrate that the absence of MSG HD and MSG+ HD from the FiOS TV channel lineup has no statistically significant impact on consumer decisions to select Verizon as an alternative multichannel video service provider,” Cablevision and MSG said.

AT&T, in complaints against Cablevision and Cox, isn’t “relying on or waiting for the new rules,” a spokesman said. “We've already proven that the refusals in these two cases have had an illegal effect.” AT&T hopes the FCC will “move quickly and rule on these complaints,” especially with the start of baseball season regarding Cox’s San Diego channel, he said. On the Cablevision complaint, “the commission has a full record” and the bureau can act now because the January order gave authority to it, he added. Cox contends AT&T is trying to “benefit selectively and retroactively” from new rules the commission deemed to apply prospectively, the cable operator said in a March 9 filing: “AT&T wants to eat its cake and have it too. It has elected to proceed without undertaking the obligations of the new rule” but is “trying to benefit from the new rules.”