OFFICE OF
THE CHAIRMAN
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON
June 10,2010
The Honorable Donald M. Payne
U.S. House of Representatives
2310 Rayburn House Office Building
Washington, D.C. 20515
Dear Congressman Payne:
Thank you for your letter regarding the Commission's proceeding to establish procedures
to review program access complaints concerning the availability of terrestrially delivered cable 
affiliated programming.
On January 20,2010, the Commission adopted a First Report and Order designed to
promote competition in the video distribution market and enhance consumer choice. The Report
and Order establishes procedures for the Commission to review, on a case-by-case basis,
complaints from multichannel video programming distributors (MVPDs), such as direct
broadcast satellite providers and telephone companies, concerning "unfair acts" related to the
availability of terrestrially delivered cable-affiliated programming.
I have noted your view that a process for resolving such complaints should not contain
any presumptions about particular types of programming. The Report and Order explains that it
is unlikely that an unfair act involving local news and local community or educational
programming, due to its replicable nature, will have the purpose or effect of significantly
hindering or preventing the MVPD from providing satellite cable or satellite broadcast
programming. However, Congress recognized in the Cable Act of 1992 that for competition to
remain vibrant, cable operators cannot unjustly deny competitors access to "must have"
programming. Because regional sports networks (RSNs) typically offer non-replicable content
and are considered "must have" programming by MVPDs and consumers, the Report and Order
adopts a rebuttable presumption that an unfair act involving a terrestrially delivered cable 
affiliated RSN has the purpose or effect of significantly hindering or preventing the MVPD from
providing programming to consumers. A cable television system operator may overcome this
presumption by demonstrating that the unfair act does not have this purpose or effect.
The Report and Order permits MVPDs to allege three types of "unfair acts" involving
terrestrially delivered cable-affiliated programming: exclusive contracts, discrimination, and
undue influence. An MVPD will have the burden of demonstrating that the unfair acts have the
purpose or effect of significantly hindering or preventing the MVPD from providing satellite
cable or satellite broadcast programming to consumers, and must prove further that the
programmer is wholly owned by, controlled by, or under common control with a cable television
system operator, satellite cable programming vendor in which a cable operator has an attributable
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interest, or satellite broadcast programming vendor. Finally, to ensure that a cable television
system operator or affiliated programmer has an adequate opportunity to review a complaint
alleging an unfair act concerning terrestrially delivered programming, and to develop a full case 
specific reply, the Report and Order increases the amount of time to file a response to a
complaint with the Commission from 20 days to 45 days.
I appreciate this opportunity to learn your views about this important matter. Please do
not hesitate to contact me if I can be of further assistance.
Sincerely,
•
Julius Genachowski