Indie Programmers, Mid-Sized Cable Support Mediacom Petition Against Large Programmers, Broadcasters

Independent programmers, mid-sized pay-TV companies and Public Knowledge disagreed with larger programmers and broadcasters on Mediacom’s requests for the FCC to restrict programmers and broadcasters in content negotiations, in comments posted online in docket RM-11728 Tuesday. The proceeding is about a petition submitted by Mediacom in July (CD July 25 p13) asking for new FCC rules that would restrict bundling, volume discounts and programmers’ ability to halt online access to their content to provide leverage during negotiations.

Mediacom’s proposals “are well beyond the scope of any Commission authority,” said NAB in its comments. Large programmers such as Viacom and broadcaster LIN Media also said the FCC doesn’t have the authority to regulate content the way Mediacom wants. Any government regulation compelling companies to offer online content would raise “significant First Amendment considerations,” NAB said. “Such regulations fall well outside the limited authority Congress conferred on the Commission to regulate content providers that are vertically integrated with cable operators,” said a joint filing from CBS, Disney, Time Warner, 21st Century Fox and Viacom.

The FCC has “ample authority” to regulate programmer practices, countered Charter Communications. Forced bundling and volume discounts can be regulated under Section 616 of the Communications Act’s authority over carriage agreements, its Section 628 authority over anticipative practices in the multichannel channel video programming distributors (MVPD) industry, and its authority over retransmission agreements, Charter said. Public Knowledge also said the commission has the authority to address the practices cited by Mediacom, though it suggested different solutions. The FCC should condition restrictions on programmers on them doing business with larger distributors and restrict broadcast channels from being bundled with cable channels, Public Knowledge said.

Mediacom’s petition addresses issues that have already been taken up many times before and belong in other proceedings, said the joint filing from Viacom and the other content companies. The programmers called the petition “a warmed over smorgasbord” and said Mediacom was trying to get “another bite at an apple that it already has gnawed to the core.” Many of Mediacom’s concerns are connected to the Comcast/Time Warner Cable and AT&T/DirecTV acquisitions and should be addressed there, the content companies said.

Independent programmers The Blaze and Rural Media Group said the programming practices pointed out in the petition hurt independent programmers. Bundling requirements “use up system capacity that then becomes unavailable to independent programmers,” said Rural Media Group. The Blaze said “free Market forces, not government regulation, should be the preferred mechanism for licensing and distributing video programming” but said the petition “touches on important, market-distorting industry practices.” Cox Communications also said it supports the issues raised in the petition and a rulemaking addressing them, rather than Mediacom’s specific recommendations.

The American Cable Association said the commission should start a rulemaking on the issues raised by Mediacom. “Although the Commission has several pending rulemakings considering program access and retransmission consent reform, it has not specifically sought comment on the proposals put forth in the Mediacom Petition,” ACA said. Online blocking as leverage in retransmission consent negotiations is “utterly inconsistent with any plausible notion of ‘good faith,'” ACA said. Verizon said programmer practices have made it difficult for it to distinguish itself from other MVPDs. “Under the circumstances highlighted in Mediacom’s Petition, it is appropriate for the Commission to take a look at this part of the video distribution marketplace,” said Verizon.