FCC May Be Trying More Hands-On Retrans Role

Agency moving to clarify what will pass muster in negotiations 7/16/2012 12:01:00 AM Eastern

The FCC under chairman Julius Genachowski has
made a point of advertising the limits of its authority
in retrans negotiations. Like an arbiter at a midnight
negotiation, Genachowski urges resolution
and points to consumer impact—an argument
he reiterated last week in reference to
the Hearst/Time Warner Cable dispute.

But a separate dispute, resulting in a
$30,000 fine against a cable operator and
the subsequent denial of a bad faith petition,
demonstrates that the FCC clearly has
a hand in spurring resolution and appears to
be taking a more active role in establishing
ground rules and enforcing existing ones.

The commission has yet to act on any of
the suggestions in its open retrans docket
after more than a year, and the chairman has
talked the talk of staying out of the marketplace.
“The commission’s authority under the old laws are limited,”
Genachowski told Congress last week. But while the talk
is one thing, the walk is suddenly a bit different.

The FCC has regularly monitored discussions and been in
contact with parties in high-profi le standoffs. In the Cablevision/
Fox dustup in 2010, for example, the chairman said the
FCC was actively working with the parties to get a deal done.

In a notice of apparent liability that preceded the $30,000
fine for a TV station carriage violation against Bailey Cable TV,
the FCC said, “On February 3, 2012, following a telephone
conference with Commission staff and the parties, Bailey and
ComCorp executed an agreement extending the term of their
retransmission consent agreement.”

Asked what role the FCC staffers had in producing that deal,
Media Bureau representative Janice Wise maintained it was
standard monitoring. “To the telephone conference call in the
Bailey order and…about retransmission procedures, when the
Bureau receives a retransmission complaint, it is standard procedure
for us to have a status conference call with the parties.”

While the FCC avers that its role is essentially
as cheerleader for successful negotiations
and enforcer of requirements that parties
negotiate in good faith, the agency does
more than shake some pom-poms. Plus, the
commission also carries the wild card of an
open docket on retrans in which it suggested
it might have to suspend exclusivity rules
during retrans impasses. Those are the rules
that prevent cable operators from striking
deals with nearby, out-of-market affiliates.

That proceeding has always been a sword
of Damocles,” said one Washington attorney
and retrans negotiations vet. “The body language
when they adopted this was, ‘We’re
opening this proceeding and we’ll just keep it hanging around.”

And through the Bailey decision and its denial of Allbritton’s
bad faith petition regarding its retrans impasse with
Shentel, the commission has used the authority it does have
to send a signal to the marketplace. In the Allbritton decision,
the FCC made it clear that a disagreement over price
is not de facto negotiating in bad faith. And in fining Bailey
Cable $30,000 for carrying TV station signals without permission
after their retrans agreement had expired, the FCC
indicated that this is not something it will let slide.

According to the Washington attorney: “For years you could
file a complaint saying ‘they’re carrying us,’ and nothing would
ever happen. Or you would get a call saying ‘Well, you settled
it. You don’t really want us to do anything, do you?’”

The commission seems to be implying that those days
are gone.

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