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FCC Seeks Comment on |
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The FCC is seeking comment
on a Petition for Rulemaking that proposes rule changes that could
significantly alter the ability of broadcasters to negotiate fair
retransmission consent agreements. The Petition was submitted by fourteen
entities, including DIRECTV, Inc., DISH Network LLC, Time Warner Cable Inc.,
Verizon, and Cablevision Systems Corp., and argues that the current
retransmission consent rules are outdated and have contributed to an
imbalance in power favoring broadcasters over multichannel video programming
distributors (“MVPDs”) when negotiating the terms of retransmission consent
agreements. To correct this perceived imbalance, the Petitioners have
asked the FCC to initiate a rulemaking proceeding to: ·
Require dispute resolution (e.g.,
compulsory arbitration or expert tribunals) when retransmission consent
negotiations are at an impasse; and ·
Impose mandatory interim carriage while
dispute resolution proceedings are being conducted. Under
the Petitioners’ proposal, a broadcaster would be required to submit to
mandatory dispute resolution and provide interim carriage of its programming
merely by showing that the retransmission consent negotiations between the
MVPD and the broadcaster had broken down and that the parties could not agree
on a price. Significantly, MVPDs would not need to show that
broadcasters were negotiating in “bad faith” in order to obtain mandatory
dispute resolution and interim carriage. The
Petitioners also urged the FCC to prohibit the tying of retransmission
consent with the sale of other programming services, including web-based
content. The Petitioners claimed that the practice could enable
programming providers to circumvent the proposed rules changes by offsetting
any decrease in the price of broadcast programming with an increase in the
price of non-broadcast programming that must be jointly purchased. Although
the purpose of this proceeding is only to determine whether the FCC should
initiate a rulemaking proceeding to revise its retransmission consent rules,
it is important to note that FCC Chairman Julius Genachowski previously has
signaled his belief that the FCC should review the retransmission consent
regime in light of recent, high profile retransmission consent disputes.
By aggressively opposing the Petition at this stage, broadcasters
nevertheless may be able to avoid a rulemaking proceeding entirely or limit
the scope of the potential changes to the retransmission consent rules. Comments
in opposition to the Petition are due Monday, April 19, with reply comments
due Tuesday, May 4. Should you wish to participate in this proceeding
or have any questions concerning the retransmission consent rules or the
proposed changes to those rules, please contact your primary attorney in our
office. March 24, 2010 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2010, Lerman Senter PLLC 2000 K Street NW,
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