The Federal Communications Commission (“FCC”) has proposed to eliminate the rule that requires cable television systems to post in their public file information about the nature and extent of their attributable interests in video program services and which of those services they own are carried on their system.
Cable operators have acquired ownership interests in a significant number of program services that they distribute to their customers. There are many possible reasons for such acquisitions, including making a profit from operating the services, controlling whether and at what cost competing multichannel video programming distributors (“MVPDs”) can get access to the services, and controlling the fees that the cable operator might otherwise have to pay for the right to carry the services.
Concerned that there might be too much vertical integration in the cable industry because of the number of programming services coming under cable control, the FCC adopted rules in 1992 limiting carriage of affiliated services to 40% of the channels of cable systems with up to 75 channels and requiring that larger systems carry at least 45% unaffiliated channels. The U.S. Court of Appeals for the D.C. Circuit reversed and remanded those rules in 2001, holding that they failed to meet the Constitutional requirement that constraints on speech be the least restrictive available.
After the Court’s decision, the FCC requested new comments multiple times but never adopted any new limit on cable system ownership or carriage of owned programming services. As a result, while public file posting requirements remain in the Rules, there are no consequences regardless of what information is posted.
Ever on the march to repeal rules that don’t have a clear purpose, the FCC has suggested that the rule requiring the posting of information about programming interests should simply be deleted. It asks whether anyone reads the public file postings and uses the information, particularly because only one complaint has been filed over more than two decades, it was withdrawn, and no sanctions have ever been imposed for violation of this aspect of the public file rules.
At least one Commissioner raised his eyebrows and asked whether maybe the FCC ought to reconsider whether the original regulatory purpose – controlling how many channels on a cable TV system the cable operator may own or control – should be looked at again. But a substantive review of vertical integration in the cable TV industry is not on the table in the current proceeding.
Comments will be due 30 days after the Notice of Proposed Rulemaking is published in the Federal Register, with Reply Comments due 15 days later.