Pointing to a national multichannel video program distribution (MVPD) marketplace in which cable operators now play a less dominant role, the FCC decided unanimously last Friday to allow provisions of its program access rules that prohibit exclusive contracts to expire. The FCC’s decision frees cable operators from the obligation to provide satellite TV firms and other MVPDs with access to affiliated sports and other programming. The agency said it would continue to consider on a case-by-case basis complaints that allege violations of statutory provisions against unfair, deceptive or anti-competitive practices. Adopted initially in response to the passage of the 1992 Cable Act, the program access rules were renewed by the FCC in 2002 and again in 2007 after the agency concluded that the MVPD market had not reached a sufficient level of competition to justify allowing the rules to expire. In allowing the rules to sunset on Friday, however, the FCC concluded that, “because the current market presents a mixed picture with the cable industry now less dominant at the national level . . . a preemptive ban on exclusive contracts sweeps too broadly.” According to the FCC, its new case-by-case approach will not only take into account competitive harms that may result from exclusive contracts but it will also “allow us to consider the potentially pro-competitive benefits of exclusive contracts in individual cases, such as promoting investment in new programming, particularly local programming, and permitting MPVDs to differentiate their service offerings.” As part of a related further rulemaking notice, the FCC is also seeking comment on the establishment of rebuttable presumptions that (1) exclusive contracts for cable-affiliated regional sports networks (RSNs) are unfair and (2) any complainant challenging an exclusive contract that involves a cable-affiliated RSN is entitled to a standstill of existing programming terms during the pendency of its complaint. FCC Chairman Julius Genachowski praised the FCC’s ruling as one that enables the agency “to continue preventing anticompetitive video distribution arrangements through a legally sustainable, expeditious case-by-case review.” Meanwhile, Rep. Ed Markey (D-MA)—one of the principal authors of the 1992 Cable Act—reacted cautiously, maintaining that “strong protections against anti-competitive behavior are still necessary, and I look forward to continuing to work to ensure that today’s decision does not tilt the playing field.”