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FCC Seeks
Comment On Comments Due: May 27, 2011 |
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The FCC is seeking comment
on several proposals to revise its rules governing retransmission consent
negotiations between television stations and multichannel video programming
distributors (“MVPDs”), including cable systems and direct satellite
systems. The changes are designed to address the FCC’s stated concern
that retransmission consent negotiations have become more contentious, with
consumers suffering the “disruptive impact” of broadcast programming being
dropped from cable and other providers when retransmission negotiations break
down (although the FCC does concede that “there have been very few complaints
alleging violations” of the retransmission consent requirements). Currently, television
stations and MVPDs are required to “negotiate in good faith” in reaching a retransmission
consent agreement. The FCC has established seven specific good faith
negotiation standards, and considers a violation of any of them to be a per
se violation of the good faith negotiation requirement. The FCC
will also look at the totality of the circumstances in reviewing a party’s
compliance with the good faith standard. The FCC seeks comment on
several proposed changes to the retransmission consent good faith negotiation
standards, including: · The permissible scope of a network’s involvement in
retransmission consent negotiations. Specifically, the FCC has inquired
whether it should be a per se violation of the good faith negotiation
standards for a station to give a network the right to approve a
retransmission consent agreement, which arguably gives a network veto rights
over a retransmission consent agreement. · Whether stations may grant another station or station
group the right to negotiate or approve its retransmission consent agreement,
such as occurs under the terms of some local marketing or joint sales
agreements. · Whether it should be a violation of the good faith
negotiation requirement for a party to refuse to provide a bona fide
proposal on important issues. The FCC also asks how it should identify
the specific issues about which a party must put forth a bona fide
proposal, and how it should determine what constitutes a bona fide proposal. · Whether it should be a violation for a party to refuse to
agree to non-binding mediation if the negotiations have reached an impasse
within 30 days of the expiration of a current retransmission consent
agreement. · What standards should be used to determine whether a
party is “unreasonably” delaying retransmission consent negotiations. · Whether a broadcaster may request, or establish as a
condition, that an MVPD not carry an out-of-market “significantly viewed”
station as part of its retransmission consent negotiations. · Whether there are additional practices or actions that
should be per se violations of the good faith negotiation requirement. The FCC also requests
comments on other aspects of the retransmission consent negotiation process,
including: · Whether small or new-entrant MVPDs may be forced to
accept retransmission consent terms that are less favorable than larger or
more established MVPDs. · Whether the good faith negotiation standards should be
treated as creating a rebuttable presumption, rather than a per se
violation, of good faith negotiations. · Whether, and if so, how the FCC should revise its
“totality of the circumstances” standard for determining good faith
negotiation violations. · Whether the requirement that cable systems provide
viewers with 30 days notice prior to deleting a station should be revised
to: (i) require notice of the potential deletion of a signal once a
retransmission consent agreement is within 30 days of expiration; (ii)
require additional notice if the parties agree to an extension of the
existing agreement as part of the renegotiation process; and (iii) whether
the requirement should be expanded to include non-cable MVPDs. · Whether the FCC should revise its rule prohibiting cable
systems from deleting or repositioning a station during a sweeps period to
clarify whether a station may require a cable system to delete its signal
during a sweeps period and whether the rule should be expanded to include
non-cable MVPDs. · Whether the FCC should revise or eliminate its rules permitting
a station to exercise exclusivity rights over network and syndicated
programming within a particular geographic region as determined by the
underlying program agreement. If you have any
questions regarding the FCC’s retransmission consent rules or would like to
submit comments in this proceeding, please contact any attorney in our
office. April 12, 2011 |
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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 © 2011, Lerman Senter PLLC 2000 K Street NW,
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