There is very little the FCC can do when it comes to retransmission consent negotiations between broadcasters and MVPDs other then perform the somewhat nebulous task of ensuring that the parties are bargaining in good faith. And by the looks of things, they won’t find much more to do after looking into the matter under an NPRM on the topic. NAB applauded the FCC’s recognition of the supremacy of the free market in this area.
The FCC designed the unanimously-approved NPRM to make modest changes within the framework of its Congressionally-mandated role in the matter. The Commission wrote, “The NPRM expresses the FCC’s view that it doesn’t have the authority to require broadcast television stations to provide their signals to pay television providers or to require binding arbitration.”
It puts forth and asks for comment on three main proposals:
* Provide more guidance to the negotiating parties on good-faith negotiation requirements;
* Improve notice to consumers in advance of possible service disruptions caused by impasses in retransmission consent negotiations; and
* Eliminate the Commission’s network non-duplication and syndicated exclusivity rules, which provide a means for parties to enforce certain exclusive contractual rights to network or syndicated programming through the Commission rather than through the courts.
Republican Commissioner Robert McDowell specifically warned any parties currently in the midst of negotiating to keep at it. He said nobody should expect assistance from the FCC.
NAB President and CEO Gordon Smith commented, “NAB is pleased the FCC correctly concluded that the marketplace is best equipped to negotiate private business contracts, and that it lacks authority to impose the heavy-handed government tools that pay-TV providers desire. We will actively engage in the Commission’s new proceeding. In more than 99 out of 100 retransmission consent negotiations, agreements are concluded successfully and invisibly. Broadcasters will continue working earnestly to ensure that consumers receive no TV service disruptions, mindful that even the threat of injecting government into a market-based process only incentivizes pay TV providers to game the process.”
RBR-TVBR observation: This is a big win for broadcasters, and not totally unexpected – Chairman Julius Genachowski has said in the past that he sees retrans as a business transaction. There is little likelihood of an MVPD lifeline coming from the FCC any time soon (whether they need one or not is another matter – but they sure are asking for one). We suspect it will literally take an act of Congress to substantially increase the FCC’s role in retransmission consent.
The current negotiation between LIN Media and Dish Network immediately springs to mind. Dish said it waited with interest to see what was going to happen at the FCC 3/3/11. The FCC all but sent Dish a personal message to sit back down and talk.
Pictured: FCC Commissioner Robert McDowell