The FCC was the arbitrator who chose the winner in determining how the FCC would hear a retransmission dispute between cabler Mediacom and broadcaster Sinclair. Sinclair failed in its attempt to limit the proceedings to open discourse with all parties present.
Mediacom prevailed in its quest for ex parte permit-but-disclose treatment, which does not require all-party participation all the time, just that written ex parte filings with the FCC are distributed to all interested parties, as are summaries of any face-to-face FCC presentations.
Sinclair had argued that such an approach would “bog down” the process and argued that, “an open discourse with all parties present, rather than a series of one-sided presentations, is the best way to insure that the Commission understands the issues.”
Medicom found Sinclair’s arguments “unpersuasive,” and so did the FCC, since it had ordered permit-but-disclose ex parte treatment of the exact same type of dispute (“strikingly similar” is how the FCC described it) between the exact same pair of companies back in 2006. The FCC asserted, “Contrary to Sinclair’s assertion, we do not believe such action ‘bogged down’ that proceeding.”
The FCC continued, “Moreover, the change in ex parte status to ‘permit-but-disclose’ in no way prevents either party from requesting a meeting between Commission staff members and all parties, nor does it prevent the Commission from scheduling such a meeting of its own accord. In fact, Commission staff has already scheduled a status conference to be attended by both parties. In view of this and in order to assure the staff’s ability to discuss and obtain the information needed to resolve these issues expeditiously, adoption of modified ex parte procedures is appropriate.”
RBR-TVBR observation: Sinclair may be wishing to lament that “it’s my ex parte and I’ll cry if I want to,” but in the end, this little skirmish shows how difficult it is to overcome a direct precedent in an FCC matter such as this.