Broadcasters, Pay TV Intensify Retrans Lobbying

That repeal "would provide an unfair competitive regulatory advantage" to cable-TV systems in their competition with stations as well as with direct broadcast satellite systems that are required by statute to give stations exclusivity over importation of duplicate distant TV signals, NBC Television Affiliates said in an ex parte filing posted Thursday in docket 10-71. The exclusivity rules "are inextricably linked" to cable TV's compulsory copyright license, the affiliates group told Commissioners Mignon Clyburn, Mike O'Rielly and Ajit Pai, according to the filing.

Any change to the current system of network nonduplication and syndex rules “may result in very damaging and unfortunate unintended consequences” for local TV, Hearst Broadcasting said in letters to Commissioners Mignon Clyburn, Mike O’Rielly and Ajit Pai. Without the rules, broadcasting won’t “have an effective or reliable remedy,” Hearst said.

Pay-TV interests disagreed. Those exclusivity rules "are unnecessary and have outlived their intended purpose," ITTA President Genevieve Morelli told Clyburn's chief of staff Chanelle Hardy, according to an ex parte filing posted Thursday. "By ensuring that the local station is the sole supplier of network and syndicated programming, the exclusivity rules shield broadcasters from competition, allow broadcasters to demand exorbitant retransmission consent fees through take-it-or-leave-it negotiation tactics, and enable broadcasters to block availability of programming even if negotiations fail." The net result is higher prices for viewers, who are blocked from getting their programming "from alternative sources that may be more affordable," the group said. ITTA also repeated its call for an array of broadcaster negotiation actions to be declared a per se failure to negotiate in good faith (see ">1508100030) as part of the proposed rulemaking on retransmission consent negotiations being considered by commissioners (see 1508140031). In its own ex parte posted Thursday, the American Television Alliance submitted a separate list of broadcaster negotiating tactics it said should be per se bad faith: blocking MVPD customers from online content, forcing bundling of content on MVPDs, withholding retrans consent of a marquee event, preventing MVPDs from importing a distant signal during a blackout, ceding negotiation rights to third parties, placing equipment restrictions and charging for subscribers who do not receive service. While NAB has accused MVPDs of being at fault in retrans disputes, ATVA representatitves told Pai and Clyburn in separate meetings according to the filing, "the facts show that broadcasters are responsible for the blackouts as broadcasters are the ones that remove their signal and deprive customers access to their local broadcast stations."

Industry experts have said this week's Dish Network/Sinclair retrans consent clash could have demonstrable effects on the retrans examination (see 1508260049">1508260049). Dish and Sinclair Thursday jointly asked the FCC for a stay and hold in abeyance on the complaint the satellite operator filed the day before. Both companies "have reached agreement in principle as to all terms and conditions for new retransmission consent and related agreements," and were operating on a temporary extensions as they finalized those agreements and that blacked-out stations were being restored Thursday, they said. They also said Dish would withdraw its complaint with prejudice once the agreements are executed.