FCC Wades Further Into Choppy Retrans Waters

Commission considers current issues facing consent regime
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The FCC has gotten an earful—and then some—on its retransmission consent regime. Broadcasters say retrans fees are crucial to their future business plans, and only fair compensation for must-have programming.

The system is not broken and does not need government to intervene in the marketplace, says broadcaster after broadcaster.

Cable operators are just as adamant that must-carry rules are the government thumb on the scale, as are the syndicated exclusivity and network nonduplication rules. Those protect local market signals by prohibiting cable operators from negotiating for out-of-market TV station signals if they can’t reach a deal with similarly situated in-market stations.

The FCC has historically kept out of retrans spats/fights, even when they result in station blackouts. But some highprofile retrans battles set Congress on the FCC’s tail and prompted the commission to propose some tweaks and a couple of serious changes to the system.

Now it is up to the FCC to digest those comments and decide whether it is going to take some jabs at the regime or give it a swift kick in the exclusivity rules.

Here is some of what the FCC has to chew on.

Don’t Tread on Us: Disney said it was only reiterating points it had made before to illustrate that the retransmission consent regime is working “exactly” as Congress intended. That is noteworthy in part because it was Disney- owned WABC’s retrans spat with Cablevision last year that helped prompt Senator John Kerry (D-Mass.) to call on the FCC to look into reforming retrans.

Disney tells the FCC that it was right to conclude it did not have the authority to mandate interim carriage or binding dispute resolution, but wrong to suggest that “isolated but highly publicized” tensions justify government intervention. Disney says the FCC cannot scrap the syndicated exclusivity or network nonduplication rules so long as cable operators continue to have a compulsory license to retransmit broadcast signals.

It’s Time (Warner) for a Change: If you ask Time Warner (and the FCC did), the retransmission consent regime is an artifi cial construct that favors broadcasters, and a “rising tide of anticompetitive conduct,” and is in need of a complete overhaul. That means not just getting rid of syndex and nonduplication rules, but must-carry rules as well, including the buy-through requirement that means TV stations must be placed in the most basic tier.

Time Warner also wants the FCC to prevent the bundling of TV station and cable channel carriage agreements, and the negotiation of multiple TV station retrans deals in a single market via joint operating agreements. Those are among the changes pushed by the American Cable Association in its filing.

Our Only Comment Is, ‘No Comment’:
The National Cable & Telecommunications Association did not file comments in the retrans docket, according to a spokesperson. Given that some of its members have interests on both sides of the issue, NCTA prefers to let whichever individual members that want to (see Time Warner and Disney, above) weigh in on their own.

E-mail comments to jeggerton@nbmedia.com and follow him on Twitter: @eggerton

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