**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

**APPROVING IN PART, AND CONCURRING IN PART**

*Re: In the Matter of Implementation of the Cable Television Consumer
Protection and Competition Act of 1992 - Development of Competition and
Diversity in Video Programming Distribution: Section 628(c)(5) of the
Communications Act: Sunset of Exclusive Contract Prohibition; Review of
the Commission's Program Access Rules and Examination of Programming
Tying Arrangements*

  

The program access rules are one of the true success stories of the 1992
Cable Act.  It is no exaggeration to say that without these rules, the
DBS industry as we know it would not exist.  Cable operators still have
the incentive and ability to discriminate against their competitors
regarding access to affiliated programming.  Access to cable-affiliated
programming was---and continues to be---vital for the growth of a
competitive marketplace.  New entrants unanimously remind us of this and
today the Commission once again unanimously so concludes.  

 

            The Commission will look at the exclusivity ban in another
five years.  I cannot say with certainty what the marketplace will look
like in 2012 and whether the exclusivity ban can safely be sunset.  I do
know it cannot be permitted to do so in 2007. In this regard, I would
not have raised the possibility of shortening the term of extension in
markets where new entrants are gaining a foothold. It seems to me that
this is ***precisely*** the time that an incumbent's incentive to
unfairly deny programming to a competitor is most acute.

 

            On the "tying" issue, I would make two points.  First, this
is primarily about the imbalance in bargaining power when a small MVPD
negotiates with large media programming conglomerates.  But what this
issue is really tied to, like so many other broadcast and cable issues,
is media consolidation, and if we fail to view it as such we do serious
injustice to the future of our nation's all-important media.   There are
huge imbalances in the media industry brought on by consolidation, and
this Commission needs to understand these imbalances and
interconnections and deal with them broadly and effectively.  Second, I
do not want to broadly inhibit broadcast stations from negotiating for
carriage of their multicast signals in exchange for carriage of their
main digital signal.  Perhaps one day the industry and the Commission
will get serious about the public interest obligations of DTV
broadcasters and we can be talking about program that really serves the
interests of localism, diversity and competition, but precluding
negotiations about multicast programming that could ultimately serve the
public interest may foreclose options that we may not really want to
foreclose. 

 

            Finally, while I am generally in favor of ensuring that
complainants at the Commission have the information they need to prove
their case, I believe that the discovery procedures adopted in this item
go too far, and, paradoxically, not far enough. They go too far in
establishing a bare "relevance and control" standard for discovery
requests with no apparent limits on requests that are duplicative or
unduly burdensome. I fear that these rules will embroil the Commission
in an endless stream of discovery disputes as the parties vie for
competitive advantage. On the other hand, I believe the decision does
not go far enough because if we are going to liberalize our discovery
rules, it ought to apply to contexts beyond program access -- such as
cases dealing with petitions to deny broadcast station license renewals
and transfers. I hope that parties in other disputes file waivers with
the Commission asking for liberalized discovery.  If sunshine is the
best disinfectant, we ought to let the sun shine into every nook and
cranny of the Commission.