Turns out the cable operator petition for rulemaking submitted to the FCC Tuesday evening is asking for three major changes, not two, with the third being the untying of retransmission consent negotiations from other programming services like co-owned cable channels and even Internet content.
Retrans started out primarily as a venue for getting carriage of cable channels by bundling them with TV stations and making that carriage, rather than cash, the price of getting that station programming.
But the petition, filed Tuesday night, says that among the things the FCC should consider to be a violation of good faith bargaining is "to insist on tying retransmission consent to negotiations for carriage of other programming services."
In the petition, backed by number two cable operator Time Warner Cable, top 10 operators Cablevision, the American Cable Association members, satellite operators and others, the coalition says that the FCC should make it clear that "a mechanism for resolving retransmission consent disputes will involve only stand-alone agreements for the broadcast signal. Broadcasters must no longer be permitted to exploit their many government-granted preferences that preclude normal, market-based negotiations."
The coalition submitted a petition for rulemaking to the FCC Monday seeking a new dispute resolution system, including arbitration, as well as preventing broadcasters from pulling their signals during retrans impasses.
But the tying issue was not spotlighted by the groups, and was made part of the call for dispute resolution proposal. They said the effectiveness of reform would turn on whether broadcasters can insist on the mandatory tying or retrans to the sale of other programming services, including Web content.
That could be a back-door condition on the proposed Comcast/NBCU joint venture, as well as a government-imposed ban on deals coupling carriage or placement of Disney and News Corp. cable channels and their TV stations.
Comcast responded in a statement: "Everyone knows that retransmission consent needs to work better, and most importantly, consumers shouldn't be held hostage in these disputes. As we've said many times, as a company that will be in both the cable and broadcasting businesses, looking at the issue from both sides, we hope we can play a constructive role in working toward a resolution of these issues."
Time Warner Cable was not playing up the untying element. "From Time Warner Cable's perspective, as stated yesterday, we are asking the FCC to consider new dispute resolution mechanisms --such as compulsory arbitration or an expert tribunal -- and to require continued carriage of broadcast signals during negotiations or disputes," the company said in a statement Wednesday.
But it, and others, signed onto a petition that clearly asks that tying be made a per se violation of good faith negotiations.