Programmers Would Rather Favor Their Private Interests Over The Public Interest
PITTSBURGH, May 30, 2018 – American Cable Association President and CEO Matthew M. Polka issued the following statement regarding the opposition of Disney, Fox, Univision, and Viacom to ACA and RCN’s proposed commercial arbitration remedy, particularly its discovery process fix, for effectively addressing the harms of the AT&T/Time Warner merger:
“For 15 years, the Federal Communications Commission has relied upon a commercial arbitration remedy to protect consumers from the harms that would be caused by pay-TV providers that acquire programmers. Time and again, with each merger it approved, the FCC determined that, in these arbitrations, video programming agreements can be relevant evidence to determining the fair market value of programming in dispute, and it allowed parties the right to seek such agreements through a discovery process. The Department of Justice also included such discovery in the arbitration process that was included in its 2011 Consent Decree with Comcast-NBCU. Many parties have taken advantage of this arbitration process and its rights of discovery to the benefit of consumers and competition.
“More than two weeks ago, ACA and RCN filed an amici brief with the U.S. District Court that is hearing DOJ’s complaint against AT&T/Time Warner. We requested the court consider addressing harms caused by the AT&T/Time Warner merger by adopting, with critical fixes, the commercial arbitration remedy relied upon by the FCC and DOJ in the past. One of our proposed fixes was to move the discovery process forward in the arbitration to produce better outcomes.
“In a filing with the court yesterday, Disney, Fox, Univision, and Viacom opposed our discovery process fix – not because we changed the timing, but because they now believe allowing their contracts to be evidence in an arbitration process would cause them harm. The programmers’ request has no merit. There is no evidence that, in the past 15 years, these programmers have ever been harmed in arbitrations in which their programming contracts were permitted to be relied upon. Just as the court rejected their earlier effort to deny access to this key information as evidence in the DOJ’s case against AT&T/Time Warner, it should do so again here. Failure to do so would cut the heart out of the arbitration process by so limiting the information that is discoverable that no party would utilize it. Neutering the arbitration process may serve the private interests of these programmers, but not the public interest.”
About the American Cable Association: Based in Pittsburgh, the American Cable Association is a trade organization representing about 800 smaller and medium-sized, independent cable companies who provide broadband services for nearly 7 million cable subscribers primarily located in rural and smaller suburban markets across America. Through active participation in the regulatory and legislative process in Washington, D.C., ACA’s members work together to advance the interests of their customers and ensure the future competitiveness and viability of their business. For more information, visit http://www.americancable.org/