cable carriage of television stations

In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes.  This strict compliance policy was set out in another case decided

The websites of the Library of Congress and the Copyright Office, which include the site used by the Copyright Royalty Board, will be down for maintenance this weekend. This includes the portal for filing cable and satellite royalty claims, which will be unavailable 5 p.m. ET, Friday, July 29, through Sunday, July 31.

FCC Chairman Tom Wheeler yesterday used a blog post to announce that the Commission’s pending rulemaking concerning its retransmission consent rules is ending without the adoption of any additional rules.  This proceeding was to review the “totality of the circumstances” test in determining whether TV stations and MVPDs (cable and satellite television systems) were negotiating in good faith to reach a retransmission consent agreement.  In last year’s Notice of Proposed Rulemaking in this proceeding, the FCC proposed a number of possible negotiating tactics that could be declared to be per se violations of the good faith standard – including items such as ending retransmission consent before a major television event (like the Super Bowl) or blocking access to online streams of programming to Internet subscribers who were affiliated with the MVPD involved in the retransmission dispute (see our summary of the proceeding here).  Many broadcasters and industry analysts feared that there would be regulations adopted that could restrict TV stations’ ability to negotiate favorable retransmission consent deals.  But the Commission seems to have reached the conclusion that they can already, under existing rules, cajole parties to reach a deal if the need arises and that no more specific regulations are needed.

In his blog post, Chairman Wheeler stated that after FCC staff had conducted an extensive review of the record, “it is clear that more rules in this area are not what we need at this point.”  He noted that the FCC has an existing nine-point test to judge the compliance of parties with the good faith requirement, plus the broader “totality of circumstances” standard that can be used to find a party in violation even when none of the specifically prohibited conduct has occurred.  While little enforcement action has actually been taken in this area, it has often been threatened to bring parties to the table and encourage a voluntary settlement.  The Chairman seemed to think that the existing remedies were enough to act in extreme cases, and trying to decide in more specificity which practices were prohibited and which were permitted “could limit future inquiries.”    In other words, adopting more specific prohibitions could make it more difficult to rely on the broader “totality of circumstances” test in any particular case that did not involve a specifically prohibited activity. 
Continue Reading FCC Chairman Announces No Changes in Good Faith Negotiation Standards for Retransmission Consent Agreements Between TV and MVPDs

The FCC has granted a one week extension for reply comments in the proceeding looking to take many of the preliminary steps toward incentive auctions by which the FCC would reclaim parts of television spectrum for use by wireless broadband companies.  Comments are now due on April 25.  We wrote about the many issues in this

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

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

The Copyright Office last week released a wide-ranging Notice of Inquiry, asking many questions about the statutory licenses that allow cable and satellite companies to retransmit broadcast television signals without getting the specific approval of all the copyright holders who provide programming to the television stations. The notice was released so that the Copyright Office can prepare a report to Congress, due June of 2008, in which it will present its views as to whether the various statutory licenses still perform a necessary function, and whether any reforms of the current licenses are necessary. To complete its report, the Notice asks many questions about how these licenses currently work, whether the licenses function efficiently, and whether they should be retained, modified or abolished in favor of marketplace negotiations. The Notice even asks whether the existing statutory licenses should be expanded to take into account the different ways video programming is now delivered to the consumer, including various Internet and mobile delivery systems. Thus, virtually anyone involved in the video programming world may want to be part of this proceeding. Comments are due July 2 and reply comments are due September 13.

The cable and satellite statutory licenses were adopted by Congress to allow these multi-channel video systems to retransmit broadcast  signals. Without these licenses, the individual owners of copyrighted material – including syndicated,  network, sports, and music programming — would have to be consulted to secure necessary copyright approval before the television signal could be retransmitted. As the multi-channel video providers would, in many cases, not even know who held all these rights, they instead pay a statutory license which is collected, pooled, and then distributed to the various rights holders in proportions agreed to by those copyright holders or, in the absence of agreement, set by the Copyright Royalty Board.


Continue Reading Copyright Office Begins Inquiry to Reexamine Cable and Satellite Statutory Licenses – and Asks if Statutory Licenses are Appropriate for Internet Video