The gloves have been off for a while in the retrans fight, but NAB and Dish are donning spiked gloves as the FCC ponders how and whether to modify its definition of what constitutes bad faith negotiations—say, by adding blackouts or deals tied to other nets or channels.
After Dish, meeting with FCC chairman Tom Wheeler and other commission officials, accused broadcasters of using their viewers as "sacrificial pawns" in negotiations, the National Association of Broadcasters fired back Thursday, calling Dish the "ultimate regulatory profiteer" with a "sordid" history of bending laws and rules.
As evidence, NAB cited, among other things, the FCC's decision that two smaller entities that had won spectrum in the AWS-3 auction with designated bidding credits had not been eligible for those because Dish had de facto control.
NAB also took aim at the American Television Alliance, the group, of which Dish is a member, lobbying for making blackouts and bundled deals de facto bad faith.
"DISH and ATVA have implored the Commission to craft a host of new good faith rules that will quell what they characterize as a surfeit of broadcaster bad behavior," NAB said. "Never mind, says DISH, that it alone was involved in half of all retransmission consent disputes in 2015. Only DISH has the gall to approach the Commission seeking favors when it is the primary driver of disputes."
NAB argues that there is no need to modify the good faith standard and that the regime is working fine. Dish and ATVA argue the system is broken and that broadcasters leverage their signals to strike unfair deals and hurt consumers and say the FCC should expand its definition of what is not in good faith to include blackout, joint retrans deals and charging MVPDs for all viewers, including those that get their channels over the air.
“It is an indisputable fact that broadcasters are responsible for each and every one of the record-setting 193 consumer blackouts in 2015 and the 26 TV blackouts to date this year,"s aid ATVA spokesperson Trent Duffy. "Broadcasters alone have the power to take down – are restore – their broadcast signals; cable, satellite and IPTV providers are at the mercy of a ruthless broadcast industry that routinely holds programing for ransom in a naked ploy to get consumers to pay higher TV fees."