Tech Law Journal Daily E-Mail Alert
Thursday, July 26, 2012, Alert No. 2,412.
Home Page | Calendar | Subscribe | Back Issues | Reference
FCC Asserts Broad MVPD Program Carriage Authority

7/24. The Federal Communications Commission (FCC) released a redacted copy [47 pages in PDF] of its Memorandum Opinion and Order (MOO) in the matter of the Tennis Channel's complaint against Comcast.

This MOO affirms the conclusion of an administrative law judge (ALJ) that Comcast violated the FCC's program carriage rules, and must provide equal carriage to Tennis Channel (TC).

The MOO discloses that the majority of the FCC Commissioners assert that the FCC has broad authority to make decisions for cable companies, and other multichannel video programming distributor (MVPD), regarding what programming to distribute, and at what tier to distribute them.

The applicable statute borrows terms from competition law. However, the majority concludes that the FCC, in enforcing this statute, is constrained neither by principles of competition law, nor reasoned economic analysis.

FCC Commissioners Robert McDowell and Ajit Pai wrote a lengthy joint dissent. The Commission divided on party lines, with Democrats Julius Genachowski, Mignon Clyburn, and Jessica Rosenworcel supporting the MOO, and Republicans McDowell and Pai dissenting.

Also, 34 mostly Republican Representatives sent a letter to the FCC criticizing the MOO. See, related story in this issue titled "Representatives Write FCC Regarding Program Carriage".

The FCC adopted this MOO on July 16, but did not release it to the public until July 24, 2012. This MOO is FCC 12-78 in MB Docket No. 10-204 and File No. CSR-8258-P.

Tennis Channel Complaint. Tennis Channel (TC), which is not affiliated with Comcast, filed a complaint with the FCC against Comcast on July 5, 2010. Comcast owns an equity interest in sports networks, including Golf Channel and Versus (which is now NBC Sports Network).

TC alleged that Comcast carries TC on a tier with lower penetration that is only available to subscribers who pay an additional fee, while Comcast carries its own similarly situated affiliated networks Golf Channel and Versus on a tier with higher penetration that is available to subscribers at no additional charge.

And this, TC alleged, violates the program carriage provisions in the 1992 Cable Act and the FCC's rules thereunder.

An FCC administrative law judge (ALJ) found that Comcast violated the FCC program carriage rules, and ordered Comcast to pay a forfeiture of $375,000. The ALJ also ordered Comcast to carry TC at the same level of distribution as Golf Channel and Versus.

Comcast sought review of the ALJ order by the full Commission.

1992 Cable Act. In 1992 the Congress enacted the "Cable Television Consumer Protection and Competition Act of 1992", Public Law No. 102-385. It directs the FCC to write program carriage rules. The FCC first enacted program carriage rules in 1993.

47 U.S.C. § 536, which was enacted as part of the 1992 Act, provides, among other things, that the FCC shall write rules that are designed to prevent a multichannel video programming distributor (MVPD), which includes cable companies, from "engaging in conduct the effect of which is to unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly".

Section 536 is also know as Section 616 Communications Act.

FCC MOO. A divided full Commission affirmed most of the order of the ALJ.

The MOO concludes that TC "has demonstrated that Comcast discriminated against Tennis Channel and in favor of Golf Channel and Versus on the basis of affiliation, and that this discrimination unreasonably restrained Tennis Channel’s ability to compete in violation of Section 616 of the Communications Act and Section 76.1301(c) of the Commission's rules."

Also, while the MOO affirms the equal carriage remedy, the MOO does not order equitable channel placement.

This MOO states that in enacting the program carriage provisions in the 1992 Act, the "Congress did not incorporate standards borrowed from the distinct antitrust doctrine of essential facilities", and "Section 616 would serve no function if it existed simply as a redundant analogue to antitrust law".

Rather, it "was designed to address specific concerns about vertical integration in the video distribution market". The MOO states that the statute is structured to prohibit discrimination on the basis of affiliation when such discrimination has the effect of unreasonably restraining the ability of an unaffiliated programming vendor to compete fairly.

In the present matter, the MOO concludes that Comcast discriminated against TC on the basis of nonaffiliation and discriminated in favor of Golf Channel and Versus on the basis of affiliation, and that this unreasonably restrained the ability of TC to compete fairly.

In its analysis of competition, the MOO states that "An MVPD that discriminates against a video programming vendor by limiting the vendor's access to nearly a fourth of the entire market and to a significant percentage of subscribers in major regional markets, while by giving similarly situated affiliated competitor networks broad access is clearly restraining the vendor's ability to compete."

Dissent. FCC Commissioners McDowell and Pai wrote that the majority's "analysis founders on this simple fact: Comcast's treatment of Tennis Channel was within the industry mainstream. In 2010, the year in which Tennis Channel filed its complaint, every major MVPD in the United States distributed both Golf Channel and Versus to more subscribers than Tennis Channel. Or, to put it another way, not a single major MVPD found Tennis Channel to be ``similarly situated´´ to Golf Channel and Versus when making carriage decisions."

That is, the MOO orders, not non-discriminatory treatment, but preferential treatment.

They also argued that the MOO fails on competition analysis. "If consumers demand Tennis Channel as much as the Golf Channel and Versus but Comcast discriminates against it, Comcast's competitors have a golden opportunity to lure Comcast's customers away by distributing Tennis Channel as widely as (if not more widely than) the other two networks. That not a single major MVPD chose this course of action in 2010 is telling -- not one company apparently thought that the marketplace demanded Tennis Channel as much as the Golf Channel and Versus." (Parentheses in original. Footnote omitted.)

Finally, the two wrote that "the broader impact of today's decision on consumers. If the Commission merely ordered Comcast to carry Tennis Channel on the same tier as Golf Channel and Versus, that alone would make Comcast an industry outlier. But to add insult to injury, the Commission also effectively obligates Comcast to pay Tennis Channel for this privilege. As a result, in order to shield themselves from discrimination complaints, Comcast and other MVPDs will be more likely to carry networks they do not want, on tiers with broader penetration, and at higher prices than ever before -- at least if they are foolish enough to be willing to invest in content creation. And the Commission should not kid itself. These additional programming costs will come out of the pockets of consumers, not from MVPDs' bottom lines."

Reaction. The National Cable and Telecommunications Association (NCTA) wrote in a statement that this "regrettable decision takes us down a dangerous and unnecessary regulatory path. For the first time, the full Commission has intervened to rewrite a private, arms-length contract and dictate the terms and conditions of carriage for a particular programming network."

The NCTA continued that "The carriage agreement at issue gave Comcast the right to carry the Tennis Channel on a separate sports tier to provide its customers with additional choice of video programming packages. The government has now abrogated that contract, midterm, by finding that Comcast ``discriminated´´ against the Tennis Channel by not carrying it on a more widely purchased tier that carries two Comcast-affiliated channels that also happen to carry sports programming."

It concluded that "Forcing a cable operator not only to carry a particular program network but to include it in a particular tier or package of channels directly interferes with the operator’s Constitutionally protected right to select and package programming in the manner that, in its editorial discretion, best meets the interests and demands of its customers.  In today’s highly competitive marketplace, it is difficult to see how the government can justify this content-based trampling on the right of free speech and the freedom of contract."

In contrast, Harold Feld of the Public Knowledge (PK) stated in a release that "We applaud the Commission for enforcing the program carriage rules as Congress intended. These rules protect independent programmers against undue discrimination by vertically integrated programmers. A vibrant and competitive programming market is essential not only for the traditional cable market, but for the online video market as well. History shows that independents such as the Tennis Channel are more likely to embrace new distribution channels and new business models that challenge the incumbents. By protecting the independents on traditional cable today, the Commission helps nurture the online competition of tomorrow."

Representatives Write FCC Regarding Program Carriage

7/23. Rep. Fred Upton (R-MI), Rep. Greg Walden (R-OR) and 32 other mostly Republican Representatives sent a letter to Julius Genachowski, Chairman of the Federal Communications Commission (FCC), regarding the "FCC's recent expansive interpretation" of its program carriage rules.

However, the letter does not reference the Tennis Channel's (TC) complaint against Comcast, or the FCC's Memorandum Opinion and Order (MOO) released on July 24. See, related story in this issue titled "FCC Asserts Broad MVPD Program Carriage Authority".

The Representatives wrote that "In today's video market, cable operators compete with satellite operators, telecommunications providers offering video, over-the-air broadcasters, online streaming video and online video distributors such as Netflix, Hulu and Roku. Cable operators must make reasonable business decisions about which programming services offer the right price and value for their subscribers. Like any business operating in a competitive market, they need flexibility to select programming that is of interest to their consumers and to package that programming in a way that enhances consumer choice and reduces cost."

"The FCC's recent interpretation of the program carriage rules, however, could be read to enable programmers effectively to force their way on to a cable operator's system merely alleging that their programming is similar enough to the operator's affiliated programming, rather than showing that there has been anticompetitive discrimination."

They concluded that "This is a broad expansion of the FCC's program carriage rules and procedures."

This letter predates the public release of the MOO by one day. However, the FCC adopted the MOO a week before the letter.

In This Issue
This issue contains the following items:
 • FCC Asserts Broad MVPD Program Carriage Authority
 • Representatives Write FCC Regarding Program Carriage
 • Facebook Reports Q2 Financial Results
 • GAO Reports on Federal Health IT Subsidies
Washington Tech Calendar
New items are highlighted in red.
Friday, July 27

The House will not meet. See, Rep. Cantor's schedule.

The Senate will not meet.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and telecast panel discussion titled "Trademark Prosecution: Lessons from the Trenches". The speakers will be Cheryl Black (Goodman Allen & Filetti), Tricia Thompkins (Perry Ellis International), Hellen Johnson (USPTO), Sharra Brockman (Verv). Prices vary. CLE credits. See, notice.

Monday, July 30

The House will not meet.

The Senate will meet at 2:00 PM. The Senate will consider the nomination of Robert Bacharach to be a Judge of the U.S. Court of Appeals (10thCir).

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its its draft SP 800-130 [112 pages in PDF] titled "A Framework for Designing Cryptographic Key Management Systems".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [MS Word], DA 12-818, regarding the privacy and data security practices of mobile wireless services providers with respect to customer information stored on their users' mobile communications devices. See also, notice in the Federal Register, Vol. 77, No. 114, Wednesday, June 13, 2012, at Pages 35336-35338.

Tuesday, July 31

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Oversight of Government Management will hold a hearing titled "State of Federal Privacy and Data Security Law: Lagging Behind the Times?". The witnesses will be Mary Ellen Callahan (DHS Chief Privacy Officer), Greg Long (Federal Retirement Thrift Investment Board), Greg Wilshusen (Government Accountability Office), Peter Swire (Ohio State University law school), Chris Calabrese (ACLU), and Paul Rosenzweig (Heritage Foundation). See, notice. Location: Room 628, Dirksen Building.

DATE AND TIME CHANGE. 12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Powering the Mobile Revolution: Principles of Spectrum Allocation". The speakers will be Richard Bennett (ITIF), Christopher McCabe (CTIA), Morgan Reed (Association for Competitive Technology), John Liebovitz (FCC), and Thomas Tower (OSTP). See, notice. Location: Room B-318, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will meet in executive session. The agenda includes consideration of S 3410 [LOC | WW], a bill to extend the Undertaking Spam, Spyware, And Fraud Enforcement with Enforcers beyond Borders Act of 2006.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

Wednesday, August 1

9:30 AM. Two Subcommittees of the House Ways and Means Committee (HWMC) will hold a hearing on removing social security numbers from Medicare cards. See, notice. Location: Room 1100, Longworth Building.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "The Relationship Between Business and Research Universities: Collaborations Fueling American Innovation and Job Creation". The witnesses will be William Green (Accenture), Ray Johnson (Lockheed Martin Corporation), John Hickman (Deere and Company), and Jilda Garton (Georgia Tech Research Corporation). The HSC will webcast this event. See, notice. Location: Room 2318, Rayburn Building.

2:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing on HR 3889 [LOC | WW], the "Promoting Automotive Repair, Trade, and Sales Act", or "PARTS Act". This bill, sponsored by Rep. Darrell Issa (R-CA) and Rep. Zoe Lofgren (D-CA), would amend the Patent Act to provide an exemption from infringement for certain component parts of motor vehicles. See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on legislation that would give states authority to impose and collect sales taxes from distant internet sellers. See, notice. Location: Room 253, Russell Building.

Thursday, August 2

9:30 - 11:00 AM. Sen. Rand Paul (R-KY) will give a speech titled "Will the Real Internet Freedom Please Stand Up". See, notice. Location: Heritage Foundation, 214 Massachusetts Ave.,  NE.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 225 [LOC | WW], the "Access to Information About Missing Children Act of 2011". The agenda also again includes consideration of three U.S. District Court nominees: Jon Tigar (USDC/NDCal), William Orrick (USDC/NDCal), and Thomas Durkin (USDC/NDIll). The SJC will webcast this event. Location: Room 226, Dirksen Building.

1:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "New Age of Discovery: Government’s Role in Transformative Innovation". The speakers will include former Rep. Bart Gordon (D-TN), Kathleen Kingscott (IBM), Eric Toone (ARPA-E), and Arun Majumdar (ARPA-E). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

Friday, August 3

This may be the final day on which the House and Senate meet until after their August recesses, except for pro forma sessions.

Facebook Reports Q2 Financial Results

7/26. Facebook, Inc., filed a Form 8-K and attached release with the Securities and Exchange Commission (SEC). These disclose financial results for the quarter ended June 30, 2012. This is Facebook's first such filing since its initial public offering. See also, PDF version of the release [10 pages] in the Facebook website.

Facebook stated, "For the second quarter, GAAP loss from operations was $743 million". In contrast, the 2011 Q2 GAAP gain was $407 Million. However, in the 2012 Q2 Facebook "recognized $1.3 billion of share-based compensation and related payroll tax expenses".

Facebook reported 2012 Q2 GAAP revenue of $1,184 Million, up from $895 Million in 2011 Q2.

GAO Reports on Federal Health IT Subsidies

7/26. The Government Accountability Office (GAO) released a report [45 pages in PDF] titled "Electronic Health Records: Number and Characteristics of Providers Awarded Medicare Incentive Payments for 2011 ".

This report pertains to federal subsidies for hospitals, doctors, dentists, chiropractors and other health care professionals for the purpose of promoting the adoption and use of information technology (IT), including electronic health records (EHR) technology.

The Congress enacted this subsidy program in the "Health Information Technology for Economic and Clinical Health (HITECH) Act", which was part of HR 1 [LOC | WW], the huge spending bill passed by the Congress in February of 2009 at the beginning of 111th Congress. It is Public Law No. 111-5. See, Division A, at Title XIII.

This report states that "761 hospitals and 56,585 professionals were awarded a total of approximately $2.3 billion in Medicare EHR incentive payments for 2011. These 761 hospitals represented 16 percent of the estimated 4,855 eligible hospitals, and were awarded $1.3 billion in Medicare EHR incentive payments for 2011."

This GAO report provides details on federal payments. It does not attempt to measure the effect of these payments on efficiency or costs of hospitals and health care professionals, or even the effect on adoption of IT or EHR.

About Tech Law Journal

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

Solution Graphics

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
3034 Newark St. NW, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2012 David Carney. All rights reserved.