FCC Seeks Comment on Network Non-Duplication and Syndication Exclusivity Rules

The FCC has adopted a Further Notice of Proposed Rulemaking (“FNPRM”) seeking comment on whether to eliminate or modify its rules protecting stations’ network non-duplication and syndicated programming exclusivity rights. These rules provide stations with a mechanism to enforce their contractual exclusivity rights by requiring that MVPDs delete duplicative network or syndicated programming carried on distant stations that they import into a market.

The FNPRM is an extension of a rulemaking proceeding started in 2010 at the request of MVPDs. The MVPDs argued that the exclusivity rules are anti-competitive and provide broadcasters with a “one-sided level of protection” exacerbating contentious retransmission consent negotiations and resulting in programming blackouts for consumers.

In the FNPRM, the FCC questions whether the exclusivity rules remain necessary in light of changes in the video marketplace and the legal landscape since the adoption of the rules. The FCC tentatively concludes that it has the authority to eliminate or modify the rules. The FCC requests comment on the following issues and related matters:

  • Are the exclusivity rules still needed to ensure fair competition between local broadcasters and MVPDs?
  • Are the exclusivity rules still needed to ensure that program suppliers have sufficient incentives to develop new and diverse programming?
  • Should the exclusivity rules be eliminated as an unnecessary regulatory intrusion in the marketplace?
  • What impact would elimination of the exclusivity rules have on broadcasters, MVPDs, program suppliers, consumers and any other interested parties? What are the costs and benefits of eliminating the rules? Would elimination have an impact on localism? Should these rules be retained in some manner in small markets?

Comments are due May 12, 2014; Reply Comments are due June 9, 2014.

If you have any questions or wish to file Comments, please contact any attorney in our office.

Categories: Media