January 28, 2020 - 2:00 pm
By Michael O'Rielly | Commissioner

By any measure, the FCC rules governing the U.S. media industry are not well aligned with the current competitive marketplace. Thanks to Chairman Pai and a Commission with feet firmly grounded in the real world, we have implemented a host of reforms to minimize undue burdens on regulated entities in accord with our statutory obligations. Many of these changes have received broad bipartisan support within the Commission and among interested parties. Notwithstanding this success, much work remains.

While I have certainly sought to carry out more comprehensive media rule reforms through this proceeding, it is equally important to address issues that might be characterized as smaller in scope. After all, any justified relief is a step in the right direction. In that vein, I will respectfully request that the Chairman pursue certain modifications to the Commission's Program Carriage Rules, which enable video content producers to challenge negative carriage decisions by multichannel video programming distributors (MVPDs). Moreover, we can and should move to eliminate an outdated recordkeeping requirement pertaining to cable operators' attributable interests in video programming.

In particular, I submit that we should fix a seemingly minor loophole in the life of any program carriage complaint. Under existing Commission rules, the clock for a complaining party to file a complaint is tied to the initial notification provided to the MVPD of the complainant's intent to file with the Commission, not when the offending action actually occurred. This means that even if the questionable behavior happened a decade ago or more, an allegedly aggrieved party can still pursue a complaint with the Commission at any time, so long as it does so within one year of notifying the targeted MVPD. This is beyond ridiculous. We should change our rules so that the program carriage statute of limitations begins to run from the date of the alleged violation, in particular, the date of denial of a request for carriage or the failure to acknowledge such a request. Doing so would in no way undermine the actual program carriage rules nor short-circuit complainants' program carriage rights. It would simply provide a modest level of regulatory certainty, while harmonizing the process with our time limitations on related matters, including good faith requirements in the retransmission consent context and program access complaints.

As long as we are correcting the program carriage process, the Commission should also clean up another procedural issue arising from the current complaint process. Under current rules, initial decisions by an Administrative Law Judge usually become effective upon release. This has often proven problematic, forcing cable providers that have not prevailed in a case to take immediate remedial action, even as the provider may seek—and perhaps ultimately prevail on—an appeal of the ALJ's ruling. Such a remedial process as currently exists can force immediate lineup changes, adding costs and potential confusion for current subscribers, and even more so in the case where a provider wins on appeal and must make changes for a second time. Accordingly, it makes considerable sense to automatically stay these initial decisions until parties have had the opportunity to pursue challenges before the full Commission. This doesn't prejudice or harm any "winning" programming complainant, as the option for a discretionary Commission-issued stay in such circumstances already exists.

In yet another example of unnecessary and obsolete burdens, Commission regulations continue to require cable operators to maintain records of their attributable interests in video programming services and carriage of any such vertically integrated video programming services on their cable systems. Despite such ownership generally waning over time, this mandate has a bigger problem: it was originally crafted to aid the Commission's larger and separate mandate—since struck down by the courts—limiting a provider's channel occupancy for its vertically integrated video programming. In short, the recordkeeping rule is a holdover mechanism to help enforce a provision the courts have killed off and the Commission has never resurrected. Why should we require the collection and reporting of data pertaining to ownership of video programming when the underlying obligation it was intended to serve is no longer operative? Continuing to do so amounts to a waste of time and resources.

While it's likely any of these worthwhile changes would need to go through the formal notice and comment process, we should be able to complete such rulemakings fairly quickly, assuming no significant disagreements among the Commissioners. I am hopeful that Chairman Pai will put these ideas before the full Commission for consideration.