The Federal Communications Commission has for many years given Comcast and other gigantic cable operators a pass on their duty to license their programming to competing multiple video programming distributors, specifically digital broadcast satellite outfits such as DirecTV and DISH.
But the FCC has also fussed that Comcast, et al., may have done bad by withholding such programming, particularly regional sports shows such as Comcast SportsNet.
The fight turns on a "terrestrial loophole" by which the likes of Comcast avoided the normal "program access" rules.
The Order concludes the Commission has authority under Section 628(b) of the Communications Act to take action if a cable operator engages in unfair acts with respect to terrestrially delivered, cable affiliated programming that significantly hinder a multichannel video programming distributor from providing satellite cable programming to consumers. The Commission adopts a rebuttable presumption that an unfair act involving a terrestrially delivered, cable-affiliated regional sports network has the purpose or effect set forth in Section 628(b). The Order adopts premitting complainants to pursue program access claims similar to claims they may pursue involving satellite-delivered, cable-affiliated programming. Because the claims involving terrestrial programming require an additional factual inquiry regarding whether the unfair act significantly hinders the complainant from providing satellite cable programming to consumers, additional time will be given to present rebuttal information.