In an article posted on the FCC’s blog yesterday, FCC Chairman Tom Wheeler listed four actions that would soon be coming out of the FCC to address broadcast issues. For TV, these include looking at what constitutes “good faith negotiations” in the retransmission consent context, and whether to do away with the FCC’s network nonduplication protection rule. For radio, the long-delayed AM revitalization docket will apparently soon be considered by the FCC. And, finally, the FCC may modernize the contest rules for all broadcasters by allowing more online disclosure of contest rules. What are these proceedings all about?
The retransmission consent proceeding grows out of Congress’ adoption of STELAR, which authorized the continued retransmission of broadcast signals by satellite television operators. As part of that legislation, which we summarized here, the FCC was directed to start a proceeding to determine whether it should adopt new rules to define what constitutes “good faith negotiation” of retransmission consent agreements. There has already been significant lobbying on this issue by both sides. Right now, good faith negotiation really has not been an area where the FCC has intervened beyond using its bully pulpit to urge parties to retransmission consent disputes to reach a deal. It is commonly recognized that failing to deal with a MVPD at all would be a violation of the good faith standard, but many MVPDs now want the FCC to become more involved, putting limits on TV channel blackouts, especially just before big televised events (like the Super Bowl or the Oscars), limiting the blackout of web-based programming to subscribers of an MVPD that is involved in a dispute, limiting the bundling of Big 4 network programs with programming from other channels provided by the TV broadcaster, and similar limits. The Chairman’s blog is short on specifics, but does suggest that, while some specific prohibitions may be suggested, the FCC would also be able to look at the totality of the circumstances to determine if a broadcaster and an MVPD were negotiating in good faith (note that these rules apply to broadcast retransmission consent negotiation, not those between MVPDs and cable channels not shown on broadcast TV).In a related action, the FCC had proposed to eliminate its network nonduplication and syndicated exclusivity protections – rules that forbid MVPDs from carrying programming from distant stations if a local station has the exclusive rights to such programs (see our article on this proposal here). The FCC had proposed to leave the enforcement of such out-of-market programming rights to contracts – taking the FCC out of the business of enforcing such rights. While broadcasters may be protected from having their programming rebroadcast outside their markets under syndicated programming and network agreements, there are concerns by some broadcasters that retransmission consent agreements are not always clear that an MVPD cannot carry their programming outside of their market. Thus, there is a fear that, even though program rights are limited by market, retransmission consent agreements entered into in the past may give some MVPDs the rights to carry TV stations beyond their market areas. The FCC is supposed to decide this matter soon, according to the Chairman’s blog post, apparently leaving these protections for broadcasters to marketplace agreements.
On the long-delayed AM revitalization proceeding, the Chairman promises some actions that will assist AM stations in the short-term, and a further rulemaking to look at long-term solutions. The blog post does not give much in the way of details, including little on the issue of FM translators for AM stations (see our article here about the Chairman’s concerns about a translator window reserved for AM stations). AM stations will obviously be anxiously awaiting the promised upcoming action.
Finally, the Chairman promises action soon on allowing broadcasters to put the material rules of on-air contests online, rather than trying to read those rules on the air enough so that a reasonable listener can hear them – a problem that many broadcasters have had in recent years. See our summary of the FCC’s proposal here. Broadcasters will certainly be looking for this relief, apparently coming in the near future.
While the incentive auction seems to be dominating the headlines, the FCC appears to be moving quickly on many other broadcast matters. Watch for decisions on these matters in the very near future.