ACA set forth its views in response to comments previously filed with the FCC by a few program vendors related to the ability and incentive of independent MVPDs to discriminate against programmers that have no financial ties to MVPDs. ACA urged the FCC to resist calls to broaden the program carriage regime, saying Congress's sole intention was to curb discriminatory conduct of vertically integrated cable operators with the incentive to make carriage choices based on financial interests in cable programming networks.
In prior comments, ACA established that a review of the legislative history makes evident that the 1992 Cable Act was not intended to apply to all MVPDs, but only to those that are affiliated with video programmers. Except for a few programmers, most commenters agreed that the program carriage rules should remain focused on vertically integrated MVPDs.
ACA also urged rejection of a proposal put forward by a number of programmers that the FCC should adopt a good-faith negotiation requirement and apply it to non-vertically integrated cable operators. In its comments, ACA explained that the programmers failed to cite statutory provisions or legislative history in support of their position, and also failed to explain how application of the good-faith standard to non-vertically integrated cable operators would prevent discrimination by vertically integrated MVPDs.
ACA also asserted that expansion of the program carriage rules to include non-vertically integrated MVPDs would violate those distributors' editorial rights under well-established Supreme Court First Amendment precedents, which require government to craft narrowly tailored remedies that would alleviate non-conjectural harms in a real and material way.
"Given the lack of evidence that non-vertically integrated cable providers discriminate against independent programmers, the FCC is not free to simply extend program carriage rules to non-vertically integrated MVPDs based on amorphous claims of policy benefits and hypothetical and completely unsubstantiated claims of anticompetitive practices when such an expansion would trample on fundamental First Amendment rights," Polka said.
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