Leased-Access Order Leaves Questions for Independent Programmers

The FCC’s Tuesday night order on leased access to cable channels gave low-power broadcasters and independent programmers a little of what they wanted, but the commission left unclear the key question of how much the spectrum-renters will have to pay.

The order—which has not yet been released—addresses some of the programmers’ complaints against the cable companies It establishes a timeline of 90 days after pleading ends for complaint resolution by the FCC, and mandates that cable companies respond within three days of requests with information about leased access.

Judging from commissioners’ statements, the order does not address other programmers complaints—that cable companies move them around from channel to channel and refuse to include their information, or even the call letters of low-power stations, in electronic program guide information.

Peter Tannenwald, a lawyer for the Community Broadcasters Association, said the rules as re-written still leave cable operators ways to destroy leased-access programmers, and that the unresolved issue of cost remains the single most important. “I’m not howling about this [as a success] by any means,” he said.

The order calls for a maximum lease fee of 10 cents per month per subscriber, but delays the effective date of the payment methodology for 90 days to allow comments and petitions for reconsideration. The FCC apparently rejected the notion of fees based on a percentage of the revenue of the programmer, which some of them had advocated.

Excluded from the new deal—at least while comment is being taken—are infomercial-type programmers. Commissioners feared that such programmers, who already have good access to cable and sometimes arrange revenue-sharing deals with the carriers—would simply use the new rules to migrate to a less expensive arrangement.

NCTA spokesman Brian Dietz said the group doesn’t think the evidence in the record justified the significant cut in the rate, but would have to review the actual order before commenting further.

A spokesman for Comcast said she couldn’t comment on an order not yet released. But the company previously told the FCC that discounting rates would not fix the problems with leased access, and competition in the regular cable marketplace had already achieved Congressional goals of promoting programming diversity.

Charlie Stegner, president of the Leased Access Programmers Association, said he expects big cable operators to sue the commission over the proposed 10-cent cap, if enacted. If cable sues, he said, he’ll roam the country to show that cable operators in many cases charge their own affiliated programmers less than what they charge independent operators.

Stegner also said that while many in the industry have focused on the price programmers would have to pay, low prices are pointless without an effective FCC enforcement mechanism.

“If the FCC staff understood the rules under the laws already written, a lot of this wouldn’t be necessary,” he said.