ATVA Presents FCC With Good Faith Wish List

Says broadcasters shouldn't block, bundle or black out
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The American Television Alliance has told the FCC that, as part of its review of good faith retransmission consent negotiations, it should prohibit blocking of Internet content, forced bundling and blackouts of "marquee" events.

That came in comments filed at the FCC Tuesday on its congressionally mandated review of the factors it should consider in its "totality of circumstances" test for determining whether the negotiations are being conducted in good faith.

In addition to reviewing those, ATVA says the FCC is empowered to adopt new rules that restrict practices that it concludes fail that "totality of circumstances" good faith test.

ATVA, whose members include cable operators, satellite operators and others, says the FCC should also rely on labor laws when an MVPD has offered to "true up" payments when negotiations are concluded, and should use the public interest standard so that it takes into account the impact on viewers, not just parties to the negotiation.

ATVA points out that the good faith standard is only found in labor law and retrans negotiations rules, so that is the obvious place for the FCC to go for guidance.

"[T]he Commission must seize the opportunity to take decisive action to protect consumers from ever-escalating TV blackouts and programming costs and reform a broken retransmission consent system," said ATVA.

In addition to no bundling, blocking or blackouts, ATVA wants the FCC to prevent broadcasters from "ceding" negotiation rights to other, nonlicensees (like a broadcast network), prohibit them from "insisting on equipment or technology restrictions" (say, provisions limiting use of Sling TV, remote DVRs or other "TV everywhere" options), disallow restrictions on out-of-market signal importation during impasses, and prevent broadcasters from charging for subs that receive signals other than from an MVPD.

ATVA conceded that its seven asks are aimed at broadcaster behaviors, not MVPD behavior.

New America Foundation, which is part of the ATVA coalition, wants even more. It says the FCC should require interim carriage and final offer (baseball style) arbitration.

“Broadcasters deliberately blackout consumers and hold programming for ransom to extract massive fee increases that are ultimately borne by consumers," said ATVA spokesman Trent Duffy in a statement. "From eight TV blackouts in 2010 to 189 so far this year affecting 12 million American homes – one of every eight pay-TV subscribers has been affected.  Retrans fees have increased 22,400% in the past decade, and more troubling, gone up 40% each of the last 3 years.”

“The current good faith rules are broken and do not protect consumers from harm. We urge the FCC to consider the public’s interest when making good faith determinations.” 

In the most recent STELAR legislation reauthorizing the distant signal compulsory license, the FCC was required to open a rulemaking inquiry into retrans negotiations.

ATVA has been the lead MVPD group pushing for major retrans reforms, and doing so in a heated war of words with their opposite number on the broadcaster side, TVFreedom. Those continued Tuesday.

Dish's Jeff Blum, on a conference calling talking about the good faith filing, says there is a blackout "crisis" that he laid at the feet of broadcasters. He said the system is broken and tilted "entirely toward broadcasters" and their abusive conduct.

“DISH has time and again demonstrated its contempt for playing by the rules, so it’s not surprising that Mr. Blum is shifting blame for a phony retransmission consent problem of its own making,"s aid TVFreedom spokesman Rob Kenny. "More than 99% of retransmission consent deals are reached each year without disruptions. We hope the FCC rejects the whining of a company that tried, but failed in its attempt, to scam taxpayers out of $3 billion in spectrum auction set-asides and has repeatedly been cited by federal judges for playing fast and loose with the truth.”

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