Cablevision has addressed the D.C. Court of Appeals, arguing that the Federal Communications Commission’s continuing renewal of program access rules is no longer justified.
Program access regulations were first adopted with the 1996 Telecommunications Act. They were adopted to prevent content distributors that also owned content networks from denying access to other distributors to gain a competitive advantage. The goal was to encourage competition by preventing any distributor from blocking rivals’ access to popular programming. The FCC has consistently reaffirmed its support of these rules, most recently in 2007, when the Commission extended the rules for another five years.
A few weeks ago, the D.C. Court of Appeals gave cable operators that oppose those rules an opening to challenge them. In its ruling that said the FCC could not justifiably dictate that no cable company could control more than 30 percent of the cable market, the Court of Appeals said the competitive situation does not justify such measures.
Cablevision seized on that passage and is arguing that the competitive situation does not justify the program access rules either. Comcast is backing Cablevision in its argument.
In a statement about its testimony today, Cablevision said: "More than 15 years ago, Congress took the extraordinary and extremely unusual step of requiring cable companies to sell their programming to competing multichannel video providers, under what they called the program access rules. The goal was to spur multichannel competition by distributors – even if it came at a great cost – by taking away the ability for companies to differentiate their products on the basis of innovative programming. The notion of one multichannel video provider is long gone, and today most programming is owned by large companies that are not in the multichannel distribution business. Retaining program access rules in cable is now analogous to requiring NBC to sell individual programs to CBS and ABC so that they will all have the same lineup.
“These rules were intended to last only for a limited time until more competition took hold, which it has. Today, the competitive landscape has three to five video providers in many markets, and a blanket application of these rules is no longer appropriate. A company operating in such a competitive marketplace should feel confident that if they invest in innovative new programming and technology, they can use those offerings to provide better products for consumers and differentiate themselves from competitors. Forcing companies to share their services with competitors who are more than 10 to 15 times their size, because those competitors are late to the game, only deters further investment and innovation, which in the end hurts consumers."