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.
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