network nonduplication

This week, the FCC’s Notice of Proposed Rulemaking on Significant Viewing was published in the Federal Register, setting a comment deadline of May 14, with reply comments due by June 15.  The NPRM asks for comments as to whether the FCC should update its rules for establishing whether or not a TV station is “significantly viewed” in a market other than the one in which it is located, and whether the FCC has the statutory authority to make changes to these rules that have largely been in effect since 1972.

A determination of significantly viewed status is important for determining whether a cable system or satellite television company will carry a TV station in areas that are not part of its home market.  For FCC purposes, significantly viewed stations generally are not subject to the network nonduplication and syndicated exclusivity protections provided to home market stations – meaning that their programming that duplicates that of a local station need not be blacked out by the MVPD at the request of the local station that has the rights to such programming in that market.  For copyright purposes, if a station has significantly viewed status, the MVPD pays at the low rates applicable to a local station pays for the compulsory copyright license needed to carry all of the programming of a television station.  If the station is not significantly viewed, the much higher “distant signal” rate applies, giving the MVPD far less incentive to carry such stations.
Continue Reading Comment Dates Set on Possible Revision to Rules on Significantly Viewed Television Stations for MVPD Carriage Purposes – What Is Being Asked?

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).
Continue Reading FCC Chairman Details Issues Coming Soon for Broadcasters – Review of Retransmission Consent, Network Nonduplication, AM Improvements, and Contest Rules

Over-the-top video systems, using the Internet to transmit over-the-air TV signals to consumers, are back in the news. Last week, a US District Court Judge in the Central District of California, in a case involving FilmOnX, an Aereo-like service that had been involved in many of the court decisions that had preceded the Supreme Court’s Aereo decision, suggested that such platforms can get that public performance right through the statutory license provided by Section 111 of the Copyright Act – the same section of the Act that allows cable systems to retransmit broadcast signals without getting permission from every copyright holder of every program broadcast on those stations. Just last year, we were writing about the Supreme Court decision in the Aereo case, where the Court determined that a company could not use an Internet-based platform to stream the signals of over-the-air television stations within their own markets without first getting public performance rights from the stations themselves. The new decision raises the potential of a new way for these Internet services to try to get the rights to rebroadcast TV signals.

The FilmOn decision was on a motion for summary decision, and is a very tentative decision – the Judge recognizing that he was weighing in on a very sensitive subject, going where both the FCC and the Copyright Office have thus far feared to tread, and disagreeing with the Second Circuit Court of Appeals that had held the opposite several years ago in the Ivi decision. The FilmOn decision is a preliminary one – subject to further argument before the Judge at the end of the month. Even if adopted as written, the judge recognized the potential impact of his decision, and the fact that it contradicted Ivi and other decisions. Thus, the decision stated that its effect would be stayed pending an immediate appeal to the Ninth Circuit Court of Appeals. So, even if finalized, we have not seen the last of this argument yet.
Continue Reading A Compulsory License for Internet TV Platforms to Retransmit Broadcast TV? One US District Court Considering FilmOnX Seems to Think So

Each year, at about this time, we pull out the crystal ball and make predictions of the issues affecting broadcasters that will likely bubble up to the top of the FCC’s agenda in the coming year.  While we try each year to throw in a mention of the issues that come to our mind, there are always surprises, and new issues that we did not anticipate. Sometimes policy decisions will come from individual cases, and sometimes they will be driven by a particular FCC Commissioner who finds a specific issue that is of specific interest to him or her.  But here is our try at listing at least some of the issues that broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC – starting first with issues affecting all stations, then on to TV and radio issues in separate sections below. 

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: In April, the FCC finally addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules – essentially by punting most of them into the next Quadrennial Review, which probably won’t be resolved until 2016.  Issues deferred include any revisions to the local ownership limits for radio or TV (such as loosening the ownership caps for TV stations in smaller markets, which the FCC tentatively suggested that they would not do), any revision to the newspaper-broadcast cross-ownership rule (which the FCC tentatively suggested that they would consider – perhaps so that this rule can be changed before the newspaper becomes extinct), and questions about the attribution of TV Shared Services Agreements (which the FCC is already scrutinizing under an Interim Policy adopted by the Media Bureau).
Continue Reading What Washington Has in Store for Broadcasters in 2015 – Part 1, What’s Up at the FCC

Some quick items to update some of our recent articles.  The FCC has granted extensions of time to comment in two rulemaking proceedings, and released its tentative agenda for its next open meeting where it will adopt an initial order in the incentive auction proceeding.  That’s the proceeding that we most recently wrote about

The FCC is now taking comments on the proposal to do away with the syndicated exclusivity and network nonduplication protection rules.  The Further Notice of Proposed Rulemaking, about which we wrote here, was published in the Federal Register today, giving interested parties until May 12 to file their initial comments, and

While we are waiting for the full text of the FCC’s decision  taken Monday on the multiple ownership rules, rolling one Quadrennial Review into another and prohibiting most Joint Sales Agreements, we can look in more detail at the FCC’s decision on retransmission consent issues.  We wrote about the historical background of both of these issues earlier this week.  When that is finally released, the full text of the decision will give us the details of the multiple ownership decision.  But the Commission has released the full text of its decision prohibiting two independently owned Top 4 TV stations in the same market from jointly negotiating retransmission consent agreements, and starting a further proceeding to look at whether the network non-duplication and syndicated exclusivity rules should be abolished.

The restriction on the joint negotiation of retransmission consent agreements was founded on the FCC’s sense that such joint negotiations gave the negotiating stations too much power in their negotiations with cable systems and other multichannel video providers.  The Commissioners concluded that this meant that TV stations engaged in such joint negotiations could get more money from cable systems than they could get if they negotiated independently.  While the statements made by the Commissioners at Monday’s open meeting suggested that such negotiating power led to higher rates paid by consumers, the evidence cited by the Commission was principally based on theoretical arguments by economists as to the ability of jointly-negotiating stations to get these high rates.  What specifically did the FCC prohibit?
Continue Reading Details of the FCC Decision Prohibiting the Joint Negotiation of Retransmission Consent By Local TV Stations and Starting Proceeding to Examine Syndex and Network Nonduplication Protections

The FCC meeting yesterday proposed to attribute Joint Sales Agreements (making them “count” for multiple ownership purposes – meaning that one broadcaster can’t do a JSA with another station unless it can own the other station).  The Commission also apparently kicked the can down the road on all other multiple ownership matters – not changing the local TV ownership rules or amending the newspaper broadcast cross-ownership restrictions, instead deciding to further consider any modification of the rules.  No decision on these issues is expected until probably 2016.  See the FCC’s Public Notice of that action here.  Shared Services Agreements will also be examined – though new ones have effectively been put on hold during the course of the examination by an FCC processing policy released two weeks ago that requires that any party proposing any sort of sharing agreement in a transaction requiring FCC approval demonstrate how that sharing agreement serves the public interest.  Also at the meeting, the FCC took actions to ban joint negotiation of retransmission consent fees by any two of the top 4 rated stations in a TV market, and to reexamine the network nonduplication and syndicated exclusivity rules (see the FCC’s decision here).  While we will have more details on these decisions in the coming days, as we fully analyze the texts of the FCC decisions as they are released, for now it is interesting to look at these decisions with the perspective of history.

Having represented broadcasters in Washington for over 30 years, one sees many of the same issues debated over and over again.  Many of the issues that were thought to be settled years ago come to the fore after most of the participants at the FCC, and even those in industry, forget that these battles had already been fought and seemingly decided.  In introducing the FCC’s examination of Shared Services Agreements at yesterday’s meeting, the representative of the FCC’s Media Bureau talked about how the examination of each transaction will be important for the FCC to determine if there are too many interlocking ties between stations that are supposed to be competitors in a market.  Not mentioned was the fact that this same kind of review used to be done by the FCC under what was called the “cross-interest policy,” a policy that was repealed by the FCC in 1988.
Continue Reading FCC Attributes JSAs, to Examine SSAs and Network Nonduplication and Syndex Rules – A Return to the 1980s?

The agenda is out, and the FCC’s likely action on their Quadrennial Review of the multiple ownership rules now seems to be much clearer.  And the decision seems likely to follow the rumors circulating in Washington for weeks (about which we have written here and here), with new regulatory wrinkles added to those previously suggested.  According to a blog post by the FCC Chairman, the plans are for the FCC to attribute JSAs where one TV broadcaster sells more than 15% of the ad time on another station in its market (meaning that such a JSA is only permissible if the stations can be commonly owned).  In addition, the Commission will prohibit TV non-commonly owned TV stations from jointly negotiating retransmission consent agreements with cable and satellite TV providers.  A further review of Shared Services Agreement is apparently in the works as well.  The Commission will apparently do nothing about the FCC’s cross-ownership rules, leaving in place rules prohibiting joint newspaper-broadcast cross ownership and even radio-TV cross-ownership rules, asking for comments on a proposal to actually retain those rules in a new Quadrennial Review that it will start on March 31. 

Retransmission consent is also on the agenda.  The agenda indicates that not only will the Commission ban joint negotiation of retransmission consent fees by stations involved in a JSA, but it will seek more information on other issues involved in the relationship between broadcasters and MVPDs (cable and satellite TV providers).  Specifically, the Commission will look at whether to repeal the network nonduplication and syndicated exclusivity rules which prohibit MVPDs from importing TV signals that infringe on the exclusive rights held by a local station to network and syndicated programming.  Were these rules to be abolished, to the extent that retransmission agreements permit it, distant signals might be imported by an MVPD when the MVPD and local television station were having a retransmission dispute, lessening the leverage of the local station from its ability to withhold its programming. 
Continue Reading FCC March 31 Agenda to Consider TV JSAs and Retransmission Consent Issues – Lots of Controversy for TV Broadcasters

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