Court upholds FCC program access rules

NEW YORK -- An appeals court on Friday dealt a blow to big cable operators, such as Comcast Corp. and Cablevision Systems, which have been hoping to keep cable networks they own, including regional sports channels, exclusive to them.

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In a 2-to-1 decision, the court upheld current FCC program access rules that require cable firms to make such programming available to their satellite TV and telecom competitors. The FCC created the rule in 1992, extended it in 2002, and again extended it in 2007 through late 2012.

Comcast and Cablevision had challenged the rule, citing free speech rights and calling the decision arbitrary.

The court on Friday suggested that the FCC could eventually decide that the rule is no longer timely.

"We're disappointed that the court has preserved the current unfairness that allows DirecTV to have exclusives for NFL Sunday Ticket and NASCAR Hot Pass, while restricting the exclusives that cable operators may have, but it is welcome that the court -- majority and minority alike -- recognize that the marketplace of today is vastly more competitive than in 1992 and that rules and regulations must keep pace with marketplace changes," Comcast said in a statement.

The program access rules have played a recurring role in the Congressional hearings on the Comcast-NBC Universal deal. Comcast management reiterated previous promises on Friday, saying it is "prepared to discuss with the FCC having (the rules) continue to apply to Comcast as part of the NBCU transaction if appropriate."

Cablevision had particularly sharp words in reaction to Friday's court ruling. "Like the must-carry and retransmission consent regime that allowed ABC to blackout the Oscars for 3 million New York households this week, the program access rules are based on an outdated and obsolete view of the competitive landscape," it said. "In today's highly competitive video marketplace these rules do nothing but tilt the playing field in favor of phone companies and broadcasters to the detriment of fair competition and consumers."

FCC chairman Julius Genachowski said he was "pleased that the D.C. Circuit court has confirmed the Commission's authority to prevent vertically integrated cable companies from denying critical television programming to their competitors and consumers."

He said the program access rules have played "a vital role in making diverse and attractive video programming available to cable and satellite TV viewers."