O.K., it is probably a bad idea to make fun of people for doing stuff you want them to do. So when the FCC released a leased access complaint on January 29, I should probably have just applauded for joy. But given that it took three years to resolve a complaint when the cable company in question never even filed a reply to the complaint, I think a little mention of what is wrong with the current leased access rules, and the Commission’s enforcement of same, is needed.
And I will pause to put in a genuinely good word for the New Media Chief Monica Shah Desai for getting this cranked out relatively quickly after she got there. Keep crackin’ that whip!
But the decision also highlights everything I’ve been complaning about in the current leased access system so that even the people who want to make it work are having a heck of a time and why we need the leased access rulemaking that Martin promised Adelstein back in July.
Some analysis below . . . .
If anybody wonders why folks trying to use leased access regard the Commission staff as more interested in servicing the cable operators than enforcing the law, consider this recently released leased access complain in favor of the leased access programmer against cable operator, Mediacom.
Briefly, Mr. Harsh of United Productions asked Mediacom to carry his programming in accordance with the leased access rules. Mediacom acknowledged getting the request and asked for an extension of time, which Harsh granted. Mediacom did nothing. Marsh filed a timely complaint on Feburary 25, 2004. On March 4, 2004, Mediacom sent a response to Harsh refusing to give him the info he demanded (and that Mediacom was required to give under the law). In the same March 4 letter, Mediacom demanded that Harsh get $1 Million worth of insurance — and amount so ridiculously high that past Commission precendent has held that demanding that much insurance amounts to a bogus attempt to block access. HArsh knew this, because he set the relevant precedent back in 1997 when confronted by the same ridiculous conduct from Time Warner cable.
So here we have Harsh and United Productions, a bona fide leased access programmer trying to make a living at this in the manner envisioned by Congress when it passed the relevant law and the Commission when it wrote its regulations. As staff note in their decsion, Harsh complained that Mediacom’s refusal to carry his programming was costing him significant money.
Nevertheless, it took three years for the Bureau’s staff to act when:
1) Mediacom never even bothered to file a reply to the complaint.
2) The facts only required a direct application of Commission precedent.
3) The complainant made it clear that delay was costing it money.
And what is the ruling of the Bureau? Mediacom needs to answer Harsh’s letters and phone calls and enter into discussions about carrying Harh’s programming. Assuming Harsh is still in business after three years of waiting for Commission action. And assuming Mediacom doesn’t jerk him around again.
In fairness to staff, they don’t always take forever to resolve a complaint. When it comes to dismissing a complaint by a programmer, Bureau staff are absolute models of efficiency. They can dismiss a complaint on a technicality so fast it can make a poor pro se programmers head spin! A quick perusal of the last few years shows that the vast majority of complaints resolved were dismissals for failure of the programmer to fail the complaint within the 60 days of refusal required by the rule. These only took a few months.
And, it’s worth noting in passing that the 60-day limit is a function of the Commission’s own rules, which it could waive if it wanted to do so. But, surprisingly for an agency that supposedly wants to enforce the law and protect leased access programmers, it never does.
So, when it comes to dismissing leased access complaints on a technical rules violation, the cable enforcement folks move with the swift implacibility of the striking cobra. When it comes to acting on a complaint with merit, the staff act with the torpor of the same cobra digesting a leased access programmer.
And then, when you tell them people are unhappy with the current system, they look at you all glassey-eyed and ask why could that be? Then they giggle and go back for a nice nap under a rock.
And the sad thing is, this decision would probably still be sitting gathering dust on someone’s desk if the Democrats on the Commerce Committee weren’t holding oversight hearings, prompting Martin to push the Bureaus to get out a boatlod of pending, overdue stuff.
Three years….small wonder Mediacom didn’t bother to file a reply. As I say all the time at the FCC “if you treat your rules as a joke, why are you surprised when industry does as well.” That’s usually good for another shrug, before they slither back under their rock for another nap.
Stay tuned . . . .
