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NCTA: Rebuttable Presumptions Would Be De Facto Extension of Program Access

10/03/2012 3:35 PM Eastern
As the FCC prepares to vote on extension or sunset of the program access rules -- it has an Oct. 5 deadline -- the National Cable and Telecommunications Association Wednesday was making its case against what it called a last-ditch effort by those trying to get the FCC to retain the rules.

FCC chairman Julius Genachowski had circulated a draft order sunsetting the rules, but retaining some protections for access to regional sports networks through case-by-case application of the rule against unfair or deceptive practices.

But fans of retaining the ban on exclusive contracts between distributors and their co-owned networks, including the American Cable Association, DirecTV and US Telecom, have been pushing for modifications that would expand those protections and extend them to entertainment programming through rebuttable presumptions that the withholding of various programming is unfair and deceptive.

In a filing with the FCC on Wednesday, NCTA said that if the FCC goes that route and "prejudge in favor of competing MVPDs virtually all of the key issues relevant to assessing the competitive impact of an exclusive contract," it would be tantamount to retaining the ban.

NCTA said there was no justification for adopting special presumptions on withholding the top 20 cable-affiliated programming networks, or for presuming that withholding a regional sports net (RSN) is unfair and hinders competition, or that a successful complaint presumes the success of a future complainant, or presuming that a complainant seeking a standstill is going to merit one, or for putting a shot clock on complaints. All those have been proposed and were said to be under consideration by FCC staffers.

According to an FCC source, the general counsel's office has concerns that if the FCC wants to caveat the sunset with a host of presumptions and new elements, it will need to do so in a separate proceeding. NCTA agrees.

"There is no basis for adopting any of the proposals in US Telecom's letter because there has not been adequate notice that the Commission was considering them nor has there been an adequate record developed to support them," the trade group said in its filing.

September