The Federal Communications Commission does not have the statutory authority to impose a retransmission-consent quiet period on broadcast and cable.
That's according to National Association of Broadcasters president David Rehr, who ratcheted up the debate over the quiet period Monday at a panel session at the Association for Maximum Service Television’s (MSTV) annual TV conference.
He shared the stage with National Cable & Telecommunications Association president Kyle McSlarrow, and the two illustrated the sharp divisions between the two sides. This was essentially round two, after the two squared off in a Hill hearing over the digital-TV transition last week.
The NAB volunteered a four-week quiet period surrounding the DTV transition date of Feb. 17, 2009. Cable operators instead asked the FCC for a longer period, starting at least at the beginning of January and extending through some limited period beyond the transition date. After which, McSlarrow said, everyone could resume fighting.
Rehr Monday said cable operators were trying to use the DTV transition to increase their negotiating leverage, and it was absurd to suggest that there were going to be major retrans fights that would require the FCC to step in, if it had the authority, which, Rehr added, it didn't.
Rehr said one of the "great worries" about the DTV transition was the negative unintended consequence of an extended retrans quiet period. "The more we talk about it, the more the FCC looks at it … that reduces at the margins people's incentive to want to make a deal," he added.
McSlarrow sad a slightly longer quiet period would hardly tip the balance of power in retrans negotiations, and that the issue was, indeed, the DTV transition. He added that there was certainly a broader conversation about reforming retransmission consent he would be happy to have.
McSlarrow also said he thought there would be "big disputes" over retransmission consent. He pointed out that cable operators agreed to carry TV stations in dual formats for three years past the transition date, even though the NCTA thought it was unconstitutional to require that. He added that it only seemed fair for broadcasters to step up, as well, in terms of the quiet period.
In a separate panel sessions, aides to all of the FCC commissioners said their bosses all hoped that the broadcast and cable industries could work it out among themselves. Eloise Gore, associate chief of the FCC's Media Bureau, said that the commission could put out an order clarifying the quiet period, or put the item out for comment.
But Rudy Brioche, legal adviser to commissioner Jonathan Adelstein, said the commissioner thought the quiet period should begin before the current retrans deals expire. In some cases, that is Oct. 1.