Cable Carriage

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Just a reminder that by October 1, Television stations must once again make their triennial carriage elections.  By that date, TV stations must notify the local cable systems and satellite carriers in their market in writing as to whether the station intends to be carried pursuant to must-carry or a retransmission consent agreement for the…

The FCC just issued a Report to Congress concerning the access of television viewers to in-state television stations.  This report was requested by Congress as part of STELA (the Satellite Television Extension and Localism Act), which extended the compulsory license for direct to home satellite television operators (DISH and DirecTV) – a license which gives them copyright clearances to retransmit all the programming transmitted by the broadcast television stations that they make available as part of their service packages.  Congress also requested a Report from the Copyright Office on the need for the compulsory license – a report also issued this week, which we will write about in another article.  The issue of access to in-state television stations has been a controversial issue, as several Congressmen have sought (and in a few cases actually received) legislative authority for cable providers to carry out-of-market television stations on cable systems serving areas in one state that are part of television markets where the television stations come from a different state.  The report refers to these areas as "orphan counties."  Once legislative authority was granted in one state, many other bills popped up in Congress trying for the same relief in their state – causing concern that the existing television markets (or Designated Market Areas or "DMAs", designated by the Nielsen Company) might be undermined.  To see what impact such changes would have, Congress requested this report from the FCC.

The report for the most part does not make recommendations, but instead simply provides information about the service provided to US television viewers, the potential options for bringing an in-state service to all viewers, and the issues that such proposals would raise. Perhaps the most interesting fact revealed by the report is that 99.98% of all US television households already have access to an in-state television station, either over-the-air or through a Multichannel Video Programming Distributor (e.g. cable or satellite TV system), so this is a very isolated issue.  However,when the FCC sought comments on the issues discussed in the report, a number of individuals in particular DMAs responded about situations where they could not get access to in-state television stations and asked that something be done.  The report assesses the implications of any action that could be taken.Continue Reading FCC Issues Report to Congress on Access to In-State Television Programming

In December, the Commercial Advertisement Loudness Mitigation (“CALM”) Act was adopted by Congress and signed by the President, addressing consumer complaints about television commercials that seem louder than the program content that they accompanied. As we wrote in our summary of the Act when it was adopted, Congress has long received many complaints about loud commercials and decided to act, even though many industry groups were concerned about the ability to design an effective system to deal with the contrasts that sometimes exist between the quiet dialogue that might precede a commercial break and the commercial advertisement itself. Nevertheless, Congress adopted the CALM Act, and instructed the FCC to adopt implementing rules within a year. This past week, the FCC released its Notice of Proposed Rulemaking, looking to adopt rules to implement the statute for over-the-air television broadcast stations, cable systems, satellite, and other multichannel video programming providers. In its NPRM, the FCC asks many questions trying to clarify the details of CALM Act implementation.

The NPRM raises a broad array of implementation issues, ranging from deciding exactly which broadcast stations and which MVPDs are subject to its terms, to the establishment of safe harbors for technical compliance. As discussed in more detail below, the Commission also asks whether stations and systems can shift the burden for compliance with these rules to program suppliers, such as broadcast and cable networks, and whether contractual means of guaranteeing compliance (such as indemnification provisions in contracts between networks and affiliates) are sufficient to ensure compliance by these program providers. Questions about how MVPDs deal with retransmission of broadcast programs, and who is responsible for noncompliant broadcast programming, are also asked. Finally, the FCC suggests processes for consumer complaints and the grant of waivers to stations and systems that cannot quickly comply with the new rules.Continue Reading FCC Seeks Comments on Implementation of CALM Act Regulating Loud Commercials on Broadcast and Cable Television

The Commission’s recent Notice of Proposed Rule Making exploring possible changes to the television retransmission consent rules has now been published in the Federal Register setting the date for Comments as May 27th, with Reply Comments due by June 27.  As we wrote about recently (here), the FCC has commenced a rule making…

Among the many items adopted by the Commission at last week’s open meeting was a Notice of Proposed Rule Making (NPRM) regarding retransmission consent agreements and the carriage of broadcast television stations by cable and satellite providers.  Retransmission consent has been a hot topic of late both in Washington and in the national press.  During the past year, a few carriage negotiations between broadcast television stations and cable or satellite operators have resulted in interruptions – or threats of interruptions – in the carriage of local stations.  As a result, both Congress and the public have paid increasing attention to retransmission consent negotiations, and the Commission’s NPRM is a effort to review some aspects of its rules governing the relationship between local broadcast stations and the cable and satellite providers that retransmit their signals.  A copy of the NPRM is available here. 

The NPRM is the outgrowth of a petition for rule making filed in March 2010 by cable and satellite providers, along with several public interest groups.  These groups jointly petitioned the FCC seeking significant changes to the current retransmission consent process.  Perhaps the most notably aspect of last week’s NPRM is not the changes the FCC proposes, but rather the changes it refrains from pursuing.  The Commission states in the NPRM that it does not believe that it has the authority to adopt either interim carriage mechanisms – to require the continued carriage of a station without a station owner’s consent while negotiations continue – or mandatory binding dispute resolution procedures for retransmission consent negotiations, both of which were proposed by the cable and satellite providers in their petition for rule making.  In both cases, the Commission found that it lacked the statutory authority to pursue the rule changes proposed by the petitioners. 

While it proposes to refrain from action on those two elements of the petition for rule making, the Commission does propose to review several aspects of its rules in an effort to, in its words, "protect the public from, and decrease the frequency of, retransmission consent negotiation impasses within our existing statutory authority."   To that end, the NPRM seeks input on strengthening the good faith negotiation rules, including whether it would be  per se violation of the good faith negotiation rules for a station to give a network with which it is affiliated the right to negotiate for carriage, or for a station to grant another station or station group the right to negotiate for carriage, such as when a station is party to a local marketing agreement (LMA) or joint sales agreement (JSA).  In addition, the NPRM proposes changes to the notice requirements of its carriage rules to require advance notice to consumers if there is the possibility that a station will be dropped from a providers’ programming line up.  This advance notice would allow consumers to make alternative plans if negotiations ultimately fail and a station’s signal is deleted from the lineup.Continue Reading FCC to Take a Fresh Look at Retransmission Consent Rules Governing Carriage of Broadcast Television Stations

After a series of FCC meetings where the only mention of broadcasters was in connection with taking TV spectrum for wireless broadband, the tentative agenda for the next FCC meeting, to be held on March 3, 2011, is full of broadcast issues – issues that could have broadcasters wishing that they were ignored once more.  The biggest issue is the initiation of a proceeding to re-examine the retransmission consent process by which television broadcasters negotiate with cable and satellite companies for payment for the carriage of their signals.  But also on the agenda are proceedings to look at rural radio services and whether the Commission should limit the ability of broadcasters to move stations from rural to urban areas, and the initiation of a proceeding to require that television programmers provide audio descriptions of the action taking place on the video portion of their programs to aid those who are visually impaired.

The retransmission consent proceeding is one which arises after several well-publicized cases where television stations and multichannel video program distributors (like cable and satellite television providers) have had disputes about the amount to be paid to the television broadcaster for the carriage of their signal by the MVPD.  In a few cases, this has resulted in the television station being pulled from the MVPD for some period of time until the dispute can be resolved.  Some MVPDs have argued that there should be more oversight over the process by which television stations can force the MVPD to pull the station’s signal until the retransmission negotiation is completed.  MVPDs argue that viewers, who can get the signal over the air as it is made available by the TV station for free, should not be held hostage to the negotiations and should not suffer when the station is pulled from the MVPD to further the TV station’s negotiation posture.  Broadcasters, on the other hand, argue that the system is working, that the number of stations who have been pulled from an MVPD is few, and that the MVPD should pay for the valuable television signal, just as it pays for other programming that it carries from cable networks.  The FCC is expected to ask whether some reform of the process, and perhaps some government oversight or mandatory mediation, should be required.Continue Reading Next FCC Meeting Full of Issues for Broadcasters – Retransmission Consent, Moving Rural Radio Stations Toward Urban Areas, and TV Video Description

The FCC’s auction of new VHF TV channels in New Jersey and Delaware (about which we have written many times including here) has resulted in only three qualified bidders.  Despite this lack of interest in these VHF channels, the FCC seems to be looking at VHF as a way to facilitate its announced plans for the clearing of significant portions of the television spectrum for wireless broadband use.  The Commission this week set the comment date – March 18, 2011 – on ways to overcome the issues that have been posed to TV stations that have remained in VHF channels after the digital transition.  In the same proceeding, the FCC also seeks comments on allowing TV stations to share the same 6 MHz channel, with both stations retaining their cable and satellite must-carry rights.  That same proceeding implies that we may well have seen the last new over-the-air television stations.  This crucial proceeding on the future of the television band requires careful attention by all parties who may be affected by the many proposals contained in this relatively compact Notice of Proposed Rulemaking. 

The first part of the FCC’s proposal (about which we previously wrote here), is to look at ways to get some of the television stations to give up their current channel to allow the FCC to use it for broadband, and having that station share another station’s channel to continue to provide its program service on what is the equivalent of a digital subchannel.  The proposal to encourage multiple TV stations to share the same 6 MHz channel raises many issues.  First, the FCC recognizes that the proposal may result in some television stations giving up their ability to broadcast in High Definition (one of the principal reasons for the initial transition to digital), but suggests that stations sharing the same channel could work out "dynamic arrangements" to allow sharing the spectrum flexibly, increasing the portion digital bandwidth allocated to one station when it has programming that would benefit from higher definition, while switching some of the bandwidth allocation to the other station at other times. 

While the Commission assumes that each station will continue to exist as an independent station even when sharing a channel with another station, many of its questions in this proceeding seem to signal uncertainty about this conclusion.  Issues on which the Commission seeks comment include:

  • What effect will channel sharing have on the deployment of HD programming and mobile television?  The Commission does not ask about 3-D television, which some broadcasters have begun to experiment with, and might be worth a comment if there are those who expect that to be part of the television future that could be affected by channel sharing arrangements.
  • In channel sharing, would each station be able to maintain a Standard Definition signal at all times?
  • The Commission assumes that each station sharing a single channel (and thus a single transmission facility) would retain a separate license, and be individually responsible for FCC-rule compliance (e.g. EAS, indecency, children’s television, political broadcasting, etc).  How would responsibility over the technical compliance be apportioned?
  • Should commercial and non-commercial stations be allowed to share the same channel?  Could commercial stations share channels that have, to this point, been reserved for noncommercial educational uses?
  • Will there be a loss in service to the public from such combinations?  Will there be television "white" and "gray" areas created, i.e. areas where there will be no over-the-air television service or only a single service?
  • Should cable and satellite service be included when evaluating questions of loss of service?
  • What impact should channel sharing have on other FCC rules, like the media ownership rules?

Perhaps the biggest issue with channel sharing is the cable and satellite carriage issue, which raised a number of issues for the Commission.  The issues, summarized below, also demonstrate the Commission’s tentativeness in its conclusion that two stations sharing the same channel are really independent stations.Continue Reading While Few Vie for New VHF TV Stations in NJ and Delaware, FCC Sets Comment Date on Improving VHF Digital Reception and TV Channel Sharing With Must Carry Rights As Ways to Help Clear TV Band for Broadband Users

Yesterday, the FCC released four different items to implement the changes enacted by Congress in the Satellite Television Extension and Localism Act, better known as STELA. With one item addressing significantly viewed out-of-market stations, two items regarding signal prediction and measurements for the reception of DTV signals, and a Public Notice requesting comments and data for a report to Congress, the FCC has wrapped up several open issues regarding STELA. As we have written about previously, here and here (among others), in addition to extending the blanket copyright license allowing satellite television providers to deliver distant signals to "unserved" viewers unable to receive a signal from their local network affiliate, STELA raised a few additional issues that the FCC needed to address through various rule makings.  With yesterday’s flurry of activity, the FCC has now addressed those issues.

With the first item, the Commission modified the significantly viewed rules that allow for the importation of distant signals in certain circumstances.  The item clarifies that a satellite subscriber need only receive the local-into-local package as a precondition for that subscriber to receive a significantly viewed station, they don’t have to receive the specific local (i.e., in-market) affiliate of the same network as a precondition to receive a distant station affiliated with the same network.  The item further clarifies that STELA no longer requires that equivalent bandwidth be dedicated to in-market and significantly viewed stations, so much as there is an HD format requirement.  Accordingly, subscribers can only receive a significantly viewed HD signal, the satellite carrier must carry the HD signal of the local station affiliated with the same network.  In reaching its decision, the Commission was cognizant of the tension between the protection of localism and Congress’s intention of achieving closer parity between the rules for satellite TV providers and cable TV providers, and it worked to reach a balance between those two sometimes competing goals.  A copy of the Order is available here.Continue Reading FCC Releases Multiple Items Implementing Rules for Satellite Television Extension and Localism Act (STELA)

The FCC’s Media Bureau today asked for public comment on the Petition recently filed by a number of multichannel video providers – including seven large cable companies, both DBS companies, and Verizon – along with the American Cable Association and several public interest and trade organizations. The Petition seeks changes in the rules governing the retransmission consent process, including potentially requiring arbitration of disputes and limiting the ability of television stations to withhold their signals while the retransmission consent negotiation process is proceeding. Comments in this proceeding are due on April 19 and replies on May 4.

This Petition was prompted in part by several recent high profile retransmission consent negotiations, where television stations threatened to pull their signals from cable systems if their requests for compensation were not met. While television companies argue that being able to pull their signals is a necessary bargaining chip in the negotiation process, petitioners submit that the changed video marketplace makes this option unreasonable, as it can harm both the video provider and the local viewers who are deprived of the station’s signal while negotiations are ongoing.Continue Reading FCC Asks for Comments on Petition Seeking Reform of Retransmission Consent Process

Only a day after asking over-the-air television broadcasters to justify their existence and why some or all of their spectrum should not be reclaimed by the FCC to be used for wireless broadband (and giving interested parties only until December 21 to not only justify their existence, but also to come up with technical means by which the spectrum could be more efficiently used, business plans for their future use of the spectrum, and a survey of the competing needs for that spectrum – see more detail below), the FCC issued another request for comments, asking how current video devices could be made more accommodating to Internet video.  These comments, also due on December 21, seemingly bring consumer electronics manufacturers and multi-channel video providers into the FCC’s rapidly-expanding evaluation of the video industry and its future.  As the comments filed in connection with these two requests will no doubt lead to proposals to be included in the FCC’s February report to Congress on strategies for broadband deployment, these quickly prepared filings could help determine the future of the video industry for the foreseeable future.

The new proceeding, looking for a "plug and play" model of consumer video devices that can access conventional television delivery systems and the Internet, starts with the statement that Internet video is "tremendously popular" and a prediction that, as it expands, new applications for such video will be found.  The Commission says that it sees Internet video as one way of spurring broadband adoption.  How to best promote the plug and play model for consumer video devices that can access the Internet is the crux of the comments that the FCC seeks.  The Commission first asks whether there are currently video devices that allow televisions to view not only the programming provided by multichannel video providers (e.g. cable and satellite), but also Internet video that may be available through an Internet service provided by that same MVPD, stating that it was not aware of such devices.  Next, the Commission asks what would be necessary to develop such devices, and what rules the Commission could adopt to possibly require capabilities in set top boxes and other devices to provide this universal access to video programming of all sorts.  The third area of inquiry from the Commission asks about standards that could be adopted to make Internet video and video from other sources interact with all other home audio and video equipment, including DVRs, to bring about the "digital living room."  And finally the Commission asks what stands in the way of plug and play devices that will work with all networks by which video is delivered.Continue Reading In Less Than 3 Weeks, Let’s Provide Detailed Analysis on Fundamentally Changing the Television Industry – Comments Sought on Encouraging Internet Video in Addition to Repurposing TV Spectrum