The American Cable Association urged the Federal Communications Commission to uphold the intent of Congress by exempting independent cable operators from program carriage rules that were clearly designed to monitor discriminatory conduct of cable operators with the incentive to make carriage choices protecting their financial interests in cable programming networks.

"Any interpretation of the 1992 Cable Act that would apply the program carriage rules to independent cable operators would disregard Congressional intent of ensuring that vertically integrated cable operators do not discriminate against programmers in which they have no ownership ties," ACA President and CEO Matthew M. Polka said. "ACA believes that the FCC must avoid any outcome that would reverse nearly 20 years of settled law of excluding independent cable operators from program carriage mandates."

ACA set forth its views in FCC comments filed Nov. 28 in response to a proposed rulemaking asking whether the program carriage rules should be expanded to include all cable operators, not just the vertically integrated operators that Congress viewed as having the incentive and ability to discriminate against unaffiliated programmers. Under the law, the FCC is authorized to review complaints by independent programmers and order appropriate penalties and remedies, including cable carriage.

In its comments, ACA noted that ACA members -- the vast majority of whom have no affiliation with any programming vendors -- have been significant and long-standing supporters of independent video programmers, particularly smaller ones.  Through the National Cable Television Cooperative (NCTC), ACA members are often important initial customers for newly launched smaller independent programmers, and are a significant source of distribution for many of them.

ACA members would be in position to provide vital support to even more independent programmers but for the onerous wholesale bundling practices of several large media conglomerates, which use their significant market power to coerce independent operators into purchasing popular networks bundled with less popular networks and distribute them on widely subscribed service tiers.

On the issue of Congressional intent, ACA explained that the 1992 law does not provide a regulatory avenue for program carriage complaints against the typical ACA member. ACA cited Senate Report language stating that the program carriage provisions were directed at vertically integrated cable operators based on concerns that these operators would protect their programming investments by refusing carriage to networks they didn't own in whole or part. That being the case, ACA argued that the FCC has no authority to bring independent cable operators within the ambit of the program carriage regime.

"One thing is clear from the legislative history:  Congress intended that the program carriage rules apply to vertically integrated operators, not to all cable operators regardless of affiliation with programming vendors," Polka said.