Wednesday, July 25, 2007

The FCC order.

With a big hat tip to Jason, who found it and posted the URL in comments, here's the FCC order. Little time today, but here are a few excerpts:

From paragraph 66:

In contrast, with respect to RSNs, we conclude, as we did in the Comcast-AT&T merger, that the relevant geographic market for RSNs is regional.218 In general, contracts between sports teams and RSNs limit the distribution of the content to a specific "distribution footprint," usually the area in which there is significant demand for the specific teams whose games are being transmitted. MVPD subscribers outside the footprint thus are unable to view many of the sporting events that are among the most popular programming offered by RSNs. We thus find it reasonable to define the relevant geographic market as the "distribution footprint" established by the owner of the programming.

From paragraph 148:
At the outset, we agree with commenters that there are no reasonably available substitutes for News Corp.’s RSN programming and that News Corp. thus currently possesses significant market power in the geographic markets in which its RSNs are distributed. We base these conclusions, in part, on the limited number of teams and games of local interest that are available and [REDACTED],455 and on our economic analysis, described below, of the effects of temporary withdrawals of such programming from MVPD subscribers. An additional feature of RSN programming that sets it apart from general entertainment programming is the time-sensitivity of the airing of important local professional sports events, such as opening days or playoffs. As we have previously observed,456 RSNs are comprised of assets of fixed or finite supply – exclusive rights to local professional sports teams and events – for which there are no acceptable readily available substitutes. These peculiar features of RSN programming give rise to somewhat unique competitive problems in terms of
finding relatively close substitute programming in the event access that is foreclosed to rival MVPDs.

From paragraph 175:
Thus, our remedy is to allow MVPDs to demand commercial arbitration when they are unable to come to a negotiated “fair” price for the programming. The staff analysis has found that the allure of temporary withholding to News Corp. is substantial, even after the ability invariably to obtain supracompetitive affiliate fee increases is eliminated. Accordingly we do not allow News Corp. to deauthorize carriage of the RSN after an MVPD has chosen to avail itself of the arbitration condition. We also specify that expedited arbitration procedures be used and that the final offers submitted to the arbitrator by each side may not include any compensation for RSN carriage in the form of the MVPD’s agreement to carry any video programming networks or any other service other than the RSN.

I haven't read closely enough to have much of an opinion. A quick read does suggest that my prior discussion of the difference between an RSN and a national network may not have been completely out to lunch. The FCC does seem to assign some significance to the geographically restricted nature of the pro sports programming on RSNs. In the case of pro sports, the geographical restrictions are at the behest of the leagues; for the BTN, while the actual demand is dramatically higher in the right state region, the BTN allows and actually wants people outside the footprint to watch the games, too. Is this distinction meaningful? I don't know, maybe I'll look deeper, but not today.
As to the remedy for a price dispute, a provider may demand arbitration. The arbitration is conducted by a single arbitrator and approximates the method used in baseball, where each side proposes a number and the arbitrator must select one of the two positions rather than coming up with his own compromise figure.

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