DirecTV Suggests FCC ‘All-In Pricing Order’ Goes Beyond Legal Authority


The FCC in March moved ahead on a party-line 3-2 vote to implement what FCC Chairwoman Jessica Rosenworcel believes are new customer protections requiring all cable TV service providers and the nation’s two direct broadcast satellite companies to specify the “all-in” price “clearly and prominently” in their promotional materials and on every monthly billing statement.

Pro-cable TV advocacy group ACA Connects already expressed their disappointment in the vote. Now DirecTV has shared its thoughts, and its displeased, too.

On April 3, representatives from the direct broadcast satellite service provider — including Stacy Fuller, Brenna Sparks, Mike Nilsson and Tim Simeone — discussed legal issues in connection with two proceedings with Commission staff: One on Cable and DBS Provider Billing Practices, and the other on Consumer Rebates.

Staff members of the Office of General Counsel, including David Konczal, Susan Aaron, Anjali Singh, and Chin Yoo, were present. So were Media Bureau staff that included Hillary DeNigro, Maria Mullarkey, and Katie Costello.

The purpose of the meeting? To reiterate written comments in which DirecTV raises concerns regarding the Commission’s legal authority to adopt the proposals of the Notices of Proposed Rulemaking in its “All-In Pricing Order,” and rebates.

First, DirecTV points to Section 335 of the Communications Act, authorizes the Commission to impose only “public interest or other requirements for providing video programming.” DirecTV’s argument? “If Congress had intended Section 335 to authorize the imposition of ‘public interest or other requirements’ on providers of direct broadcast satellite service generally—as opposed to authorizing the imposition of such requirements for the provision of public service programming—it would have said so.”

Thus, DirecTV argues, Section 335 “appears to be confined to program access and carriage requirements, as opposed to authorizing regulation of DBS more broadly.”

Whether or not DirecTV’s retroactive arguments carry weight is yet to be seen. But, it is clear that they believe MVPD competitors including cable operators and Dish have provided programming to their subscribers “for years with no notable hinderance.” Further, DirecTV’s online competitors, which it calls “the putative beneficiaries of these rulemakings, but notably not beneficiaries of Section 628(b), face even less impairment or hindrance in providing programming to subscribers.”

DirecTV concludes, “Indeed, it is common ground that traditional providers of programming, including both cable and DBS providers, are currently losing subscribers to streaming and other non-traditional service providers precisely because such providers are able to provide programming to subscribers with fewer hindrances and often at lower costs.”

Representing DirecTV as legal counsel is Timothy Simeone of HWG LLP’s Washington, D.C., office. 

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