retransmission consent

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The FCC issued a public notice seeking comment on a Petition for Rulemaking filed by cable operator Mediacom asking for the FCC to require TV stations, in their license renewal applications, to certify that the licensee will not block any multichannel video programming distributor (i.e. cable or satellite TV) from carrying the signal of the station at the end of a retransmission consent agreement unless the station is accessible over-the-air or by Internet streams to at least 90% of the homes in the market served by the MVPD. Comments on this Petition are due by August 14. This is an initial Petition for Rulemaking (which can be viewed here), so these comments will inform the FCC as to whether to further pursue the proposals made in the Petition through a formal Notice of Proposed Rulemaking which would be needed before a rule change.

Obviously, this petition raises controversial issues. Mediacom asserts that it is looking after the interests of consumers in being able to access television programming – and not losing that access during retransmission consent negotiations. Broadcasters, on the other hand, feel that the ability to remove their signal from an MVPD is their most effective bargaining chip in retransmission consent negotiations. Broadcasters will no doubt argue that they have the rights to their programming and, if the MVPD will not agree to terms for its carriage, the MVPD should no longer have the right to carry the programming.
Continue Reading FCC Asks for Comments on Petition for Rulemaking that Would Tie TV License Renewals to Restrictions on Blackouts after the Expiration of Retransmission Consent Agreements

Last week, the Senate approved a reauthorization of STELA, the new bill called STELAR (the “STELA Reauthorization Act of 2014”), adopting the version that had been approved by the House of Representatives earlier in the month.  In addition to simply giving satellite television companies (essentially DISH and DirecTV) the a five-year extension of their rights to rebroadcast the signals of over-the-air television stations without authorization from every copyright holder of the programming broadcast on those stations, STELAR made other changes to both the Communications and Copyright Acts that will have an impact on TV station operators once this bill is signed by the President.  The Presidential signing is expected before the end of the year.  [Update, 12/5/2014 – the President signed the Bill yesterday evening, so it is now law]

Some of the important provisions for TV stations contained in this bill include provisions that impact not only the relationship between TV stations and satellite TV companies, but also ones that have a broader impact on the relationship of TV stations with all MVPDs, including cable systems. There is also a provision actually providing more latitude for LPTV stations to negotiate carriage agreements.  Some of the specific provisions of this bill include:

JSA Extension:  STELAR will give TV stations currently operating with a Joint Sales Agreement with another station in their market which they cannot own under the current multiple ownership rules 6 more months to terminate such operations – until December 19, 2016 (after the next Presidential election).  See our discussion of the changes in JSA attribution here and here.
Continue Reading Congress Passes STELAR – Renewing Authorization of Satellite Carriers Carriage of TV Stations – With Some Important Changes to JSA, Retransmission Consent and Market Modification Rules

The FCC announced two significant policy initiatives by Blog post in the last week – perhaps recognizing that the Internet provides a better way of packaging a message about policy directions than an unpredictable news conference.  The two decisions announced this week by Blog post were (1) the Chairman announcing that he has directed that a Notice of Proposed Rulemaking be circulated among the other Commissioners to treat Over-the-Top TV providers (“OTT” providers, usually those that provide service over the Internet) of linear programming as MVPDs – meaning that they would be treated, for regulatory purposes, in much the same way as cable and satellite TV services, and (2) an announcement by the head of the incentive auction task force that the auction by which some of the broadcast TV spectrum will be purchased from TV users and resold to wireless carriers for broadband wireless uses will be postponed from its expected date in the summer of 2015 until early 2016.  We will write about the postponement of the auction later.  But what does the MVPD proposal mean?

The MVPD issue is one that we last wrote about here.  At the urging of some OTT providers, apparently including Aereo, the FCC has been urged to treat these providers, when they provide “linear” programming (programming that is provided at set times on a set schedule, in the manner of broadcast TV or cable programming, as opposed to the on-demand programming of a Netflix or Hulu), in the same fashion as cable and satellite.  The Chairman, in his blog post, announces his support for an FCC proceeding to review that proposal, apparently looking to use linear Internet programmers as a new competitive force against cable and satellite TV.  By treating these services as MVPDs, they could get access to over-the-air TV programming (if they can negotiate retransmission consent agreements with the TV stations) and equal access to programming provided by vertically integrated cable programmers (those programmers that have attributable ownership from cable system operators).  But, obviously, there are some big “ifs” here.
Continue Reading FCC Policy by Blog Post – Over-the-Top Internet-Delivered Television Programming Providers May be Treated as MVPDs, a Reaction to Aereo?

Could a change in the FCC treatment of Internet delivered video services be in the works – and how would that affect services like Aereo?  There were a number of published articles last week that suggested that the FCC was considering extending the definition of a Multichannel video programming distributor (MVPD) to over-the-top video providers or, as they are apparently being referred to, as Online Video Distributors (OVD) who provide linear programming like a cable or satellite company (as opposed to an on-demand provider like NetFlix).  While Chairman Wheeler at a press conference following last week’s open FCC meeting reportedly stated that the issue was “kicking around” implying that no decisions had been made, the FCC did announce that it was making a long-outstanding proceeding to look at this issue into a “permit but disclose” proceeding, meaning that parties can lobby the FCC on the issue as long as they file statements for the record disclosing the substance of their conversations with decision-makers.  What does all this mean?

If the Commission were to consider OVDs to be MVPDs, they would presumably be covered by all of the rules that apply to cable and satellite – including provisions that allow equal access to cable network programming in which the cable companies have a financial interest, and would also be subject to the must carry-retransmission consent regime that is applicable to other MVPDs, requiring MVPDs to negotiate with (and in many cases pay) TV stations to carry their programming.  The open proceeding to consider OVDs as MVPDs was started by a company called Sky Angel that focused on family-friendly programming.  The service initially delivered its programming by satellite, but migrated it to the Internet, at which time they wanted access to cable programming including Animal Planet.  When access to that programming was denied, they complained to the FCC.  The FCC staff initially denied the complaint, determining that MVPDs had to be “facility based,” meaning that they had to own the actual facilities that delivered the programming to the consumer.  The full Commission over two  years ago asked for public comment on whether this decision was correct – we wrote about that request for comment here and here – and the proceeding has essentially sat at the FCC ever since, until it began to get some renewed interest in connection with the Aereo case.
Continue Reading Will FCC Extend MVPD Rules to Online Video Providers – Including Retransmission Consent Fees and Program Access Rules?

The Supreme Court decision in the Aereo case seemed to be the end of the line for the service that was retransmitting television stations signals without consent, as it found that the broadcasters were entitled to an injunction to force Aereo to cease the public performance of their signals without consent.  In fact, Aereo itself seemed to think so too, shutting off its service soon after the decision.  But in a move that was surprising to some, Aereo has apparently not thrown in the towel, and it is now back in Court with a two-pronged argument as to why its service is still viable (see its letter to the Court here).  First, it argues that, as the Supreme Court seemed to think that Aereo acted like a cable system and should be treated in the same manner as a cable system for purposes of determining whether its retransmission of a television stations signal was a public performance, it might as well be treated like a cable system for all purposes, and thus it should be entitled to carry the signals of TV stations pursuant to the statutory license granted to cable systems by Section 111 of the Copyright Act.  Second, it argues that, even if it does not qualify for treatment as a cable system, it should nevertheless be able to retransmit television signals – just not in real time, as the Aereo contends that the Court decision only prevented simultaneous and near simultaneous retransmissions of the television stations’ signals.  Offering once again a fearless prediction – I doubt these arguments will help Aereo any more than did their arguments before the Supreme Court.

Admittedly, their argument that they qualify as a cable system under the Copyright Act has some appeal.  In fact, as we noted in our summary of the oral argument before the Supreme Court, the Justices even asked why the company did not qualify as a cable company.  Section 111 of the Copyright Act defines a cable system as follows:

A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service.

That language is seemingly broad, covering not just what most of us think as a cable system (one that uses wires to transmit TV programming to the customer), as it talks expansively of “other communications channels” to deliver programming.  Of course, when satellite TV started, they were unsure of their status under this definition, and ended up getting a whole new section of the act to determine their ability to retransmit local TV signals to their subscribers.  But even if this section can be read expansively to cover Aereo, what does that get them?
Continue Reading Not Dead Yet – Aereo Tries To Reinvent Itself By Arguing that it is a Cable System Entitled to Carry Television Stations Pursuant to the Statutory License

The FCC yesterday issued an order imposing a $2.25 Million fine on a set of companies that operated a system that retransmitted TV signals to households in large housing units in the Houston area.  The system had paid retransmission consent fees to the TV stations, then stopped doing so, claiming that it was changing so as to operate as a Master Antenna Television System (MATV).  MATV systems are exempt from paying retransmission consent fees under certain defined circumstances.  This exemption was adopted for apartment complexes and other large residential dwelling units to allow residents to receive over-the-air television so as to not force all of the residents to have an antenna in their own residential units, which might not be feasible or optimal for TV reception.  The problem in yesterday’s case, according to the FCC decision, was that this company did not in fact act as an MATV system, but instead continued to deliver its programming to the dwelling units by means of its fiber connection to a single headend, where TV programs were bundled with traditional cable network programming.  According to the decision, the system continued to transmit TV signals through its fiber network for as much as 208 days after the expiration of the retransmission consent agreements with the TV stations whose signals it was carrying.

FCC rules require that cable systems and other MVPDs (multichannel video programming distributors) receive the consent of TV stations before retransmitting their signals.  The exception for MATV systems is a limited one. It provides that the signals of TV stations be made available to the residents of the dwelling units that are served “without charge and at the subscribers (sic) option” and that the receiving device be either owned by the subscriber or building owner, or “available for their purchase upon the termination of service.”  The Commission further faulted the service for apparently having continued to deliver TV programming to subscribers by its fiber service from its headend, even after installing master antennas at the buildings in which the subscribers lived.  Simply having the antennas available was not enough to excuse the system from the retransmission consent obligations when the actual signals were sent by fiber. 
Continue Reading FCC Fines Cable System $2.25 Million for Retransmitting TV Stations Without Consent

In today’s Federal Register, the FCC is published its new rule on prohibiting the joint negotiation of retransmission consent agreements by stations that are not commonly owned.  According to the notice, “it is a violation of the duty to negotiate retransmission consent in good faith for a television broadcast station that is ranked among the …

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 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