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88 Tul. L. Rev. 127 (2013-2014)

handle is hein.journals/tulr88 and id is 139 raw text is: COMMENTS Balancing Policy Goals in the Cable Industry After the Expiration of the Exclusive Contract Prohibition Molly Wells* Since the inception of the cable ndustry lawmakers have been concerned with the dual goals of diversity video proamming and competition in video programmig delivery To encourage competition in the market for video programming delivery the Federal Communications Commission (FCC) for years prohibited exclusive contracts between vertically integrated cable operators and their affiliated content providers. On October 5, 2012, however the FCC found that the prohibition was no longer necessary to protect competition in video programming and rplaced the prohibition with a case-by-case approach. Under this approach, an exclusive contract is unfair and therfore unlawful only when its anticompetitive hamis outweigh its procompetitive benefits. Although beneficial for program diversity the FCCs case-by-case approach to exclusivity nsks causing a backward slide in the market for video programming delivery Uncertainty surrounding the application of the antitrust laws to regulated industries, such as the cable mdustry may render even mom precarious the balance achieved between these two policy goals. This Comment details the evolution of the FCCk approach to exclusive contracts between vertally integrated cable operators and their affliated content providers and explores how the FCCS new approach to exclusive contracts could affect competition in the market for video programming delivery I. INTRODUCTION. ................................ ...... 128 II. STRUCTURE, GENESIS, AND REGULATION OF THE CABLE INDUSTRY ................................................ 131 A. Structure and Genesis of Cable Television .... ...... 131 B. Evolution of Cable Regulation .................. 132 III. THE 1992 CABLE ACT AND THE FCC's PROGRAM ACCESS RULES ............................................. 135 A. The Cable Television Consumer Protection and Competition Act of 1992. ..................... 135 B. The Exclusive Contact Prohibition ........... ......... 137 C Justification for the Prohibition & Extension .... ..... 139 IV THE EXPIRATION OF THE EXCLUSIVE CONTRACT PROHIBITION ........................................ 140 * 0 2013 Molly Wells. J.D. candidate 2014, Tulane University Law School; B.A. 2005, University of Richmond. Many thanks to Professor Gabriel Feldman, who provided invaluable guidance, and to the Tulane Law Review team for making me look good (even if you did edit out my jokes; dear reader, this Comment used to be so amusing). And special thanks to my husband Andrew for all of the support and coffee. 127

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