Back in March, the FCC released a Notice of Proposed Rulemaking on whether to extend the “program access rules” for another five years, either as they exist now or in some modified form. For those unfamiliar with the program access rules, they require a cable or satellite provider that also owns programming to make that programming available to rivals on commercially reasonable terms. For example, Cablevision has to sell AMC to Verizon for at least a facially reasonable price, even if it would rather not sell AMC to Verizon at all.
Congress required the FCC to create the program access rules as part of the 1992 Cable Act. Because Congress did not particularly trust the FCC to do a good job fighting cable market power, it gave the FCC very explicit instructions in Section 628(c) (codified at 47 U.S.C. 548(c)). But it also said the rules would expire after 10 years, unless the FCC extended them. The FCC extended the rules for 5 years in 2002, and again in 2007. Without another extension, the Program Access Rules will expire on October 5, 20122.
At this point, it remains unclear whether the FCC will make the October 5 deadline, whether or not a majority of the Commissioners favor extending the rule, and if so what form an extended rule would take. It also remains unclear what happens if the matter remains pending but the FCC has not made a decision. Do the rules disappear? Do they remain in effect bending a decision? If they expire, can the FCC subsequently bring them back in this rulemaking or would it need a new rulemaking, and if so under what authority and what standard? And, given the hostility the D.C. Circuit showed to the rules after the 2007 renewal (Cablevision Sys. Corp. v. FCC, 597 F.3d 1306 (D.C. Cir. 2010)) and the recent order from the D.C. Circuit staying the FCC’s program carriage order in Tennis Channel v. Comcast, would an extension in any form survive judicial review?
But most of all, it remains unclear whether it really matters or not. Certainly application of the program access rules to online video distributors (OVDs) would be a real game changer. But the FCC stubbornly refused to ask about this possibility in any way shape or form, and continues to hold the Sky Angel case in limbo despite a Public Notice and a mandamus petition. So does the conventional MVPD market still need the program access rules, and if so why has the industry been so quiet compared to previous renewal years? Did competing MVPDs believe that such an obviously critical bulwark of competition would naturally be extended, or is it simply not that important in today’s MVPD marketplace?
Whatever course the FCC chooses, it would be irresponsible to allow the rules to expire through a failure to act by October 5, with no guidance as to what happens on October 6. Even if the Commission remains too far away from an ultimate decision by the October 5 deadline, it can take steps to avoid confusion.
Ideally, if the FCC does not think it can make the October 5 deadline (and it would be pretty damn tight at this point), it ought to pass a quick extension to buy more time to avoid confusion. While the Republicans seem likely to dissent from any form of extension for another 5 year term, they ought to agree to a short extension to prevent the regulatory uncertainty that would follow if the rules simply expire with no agency action one way or another.
If nothing else, if it looks like things will go down to the wire, the Media Bureau or Office of General Counsel should issue a Public Notice providing guidance on what happens after October 5. While I don’t expect Cablevision to announce it will no longer make AMC available to Verizon on October 6, I do expect that parties that oppose extension of the rule will claim that the rules expired, that the FCC would need to begin a new proceeding to reinstate the rules (assuming it has such authority, which opponents won’t concede). This will create needlessly avoidable complications on appeal to a hostile D.C. Circuit.
To be clear, I’m not advocating any specific final outcome here. I’m actually on leave from PK until November 5, and I can’t say that I’ve paid much attention since the FCC decided to ignore whether or not to extend program access protections to OVDs. But no one should want an uncertain muddle no matter what final outcome they support. I hope the FCC can get an actual order out by the deadline. But if it can’t, I would hope the agency can at least act responsibly to avoid needless complications and confusion.
Stay tuned . . . .
