Since the inception of the cable industry, lawmakers have been concerned with the dual goals of diversity in video programming and competition in video programming 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 replaced the prohibition with a case-by-case approach. Under this approach, an exclusive contract is unfair and, therefore, unlawful only when its anticompetitive harms outweigh its procompetitive benefits. Although beneficial for program diversity, the FCC’s case-by-case approach to exclusivity risks 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 industry, may render even more precarious the balance achieved between these two policy goals. This Comment details the evolution of the FCC’s approach to exclusive contracts between vertically integrated cable operators and their affiliated content providers and explores how the FCC’s new approach to exclusive contracts could affect competition in the market for video programming delivery.
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- J.D. candidate 2014, Tulane University Law School; B.A. 2005, University of Richmond.
- 88 Tul. L. Rev. 127 (2013)