The National Association of Broadcasters told the FCC this week that to grant the pay-TV industry what it wants in the ongoing retransmission consent good faith negotiations proceeding would make it an unwitting accomplice in that industry's attempt to grab more revenue. One of the things the FCC can't compel is online play, NAB said.
Various pay-TV operators want the FCC to require outside arbitration of retrans impasses, make blackouts de facto bad faith negotiating, and wouldn't mind the FCC scrapping the syndicated exclusivity and network nonduplication rules that backstop contractual exclusivity.
They have also suggested the FCC should prevent broadcasters from withholding content online during impasses, but NAB says it would be unlawful for the FCC "to require broadcasters to make their content available online."
"Federal copyright law gives broadcasters the right to control whether, how and when their content is distributed," NAB said. "Nothing supports the view that the FCC can supersede copyright law to require broadcasters to publicly perform their copyrighted material online."
The National Cable & Telecommunications Association, for one, has said that blocking access to their customers' online programming as a retrans negotiating tactic should be deemed a violation of good faith negotiations.
The broadcast trade association pulled no punches in filing reply comments in the proceeding—launched at the behest of Congress and at the urging of the pay TV industry—using terms like "fetish," "monopoly power," "imbalance" and "unlawful."
"This proceeding is solely about encouraging government intervention in the marketplace–in this one limited instance–to prevent broadcasters from negotiating for the fair market value for their signals. Nothing more, nothing less," NAB said.
Pay-TV operators argue that retrans fixes are consumer-friendly, but NAB says the FCC should be under no illusion that changes in the good faith standard will lower prices or lead to "more reasonable" equipment charges or reduce "sky-high" early termination fees. Trying to hit all the hot-button issues, like consolidation, NAB said the changes would only put money in the pockets of "the likes of" AT&T/DirecTV (recently merged) and Time Warner Cable/Charter/Bright House (trying to merge).
NAB said the most consumer-friendly move the FCC could take would be to quickly close the proceeding without changing anything about the retrans system or good faith definitions.
"It’s time for MVPDs—especially those multi-billion dollar corporations responsible for the lion’s share of disputes—to focus on bargaining with broadcasters and not the Commission," NAB said.