The Telecommunications Law Resource Center is the most comprehensive reference and news platform for communications law, covering broadcasting, cable, broadband, telephony and wireless;...
By Lydia Beyoud
Sept. 22 — The FCC's Media Bureau chief backed a commission effort to end broadcast exclusivity rules in a Sept. 22 blog post, dealing a blow to broadcasters that want the agency to keep the rules.
Federal Communications Commission Chairman Tom Wheeler teed up the issue in August by circulating an order that would end the rules, which require cable providers to respect local television stations' exclusivity rights by not carrying duplicative television programming from another market. The blog post by Media Bureau chief Bill Lake signals that the agency wants to proceed with the order over broadcasters' objections.
“There was a time and a place for the Commission’s exclusivity rules. That time has passed,” Lake wrote. “It is now time for the Commission to step aside and let programming negotiators in the private marketplace do their jobs.”
The National Association of Broadcasters fired back later on Sept. 22 that the FCC appeared to be “on a singular crusade” to eliminate rules the trade association says are an important part of broadcasters' ability to provide local content and news.
But Lake made it clear that the FCC plans to do away with the current rules, which require the agency to play a role in resolving retransmission consent disputes between broadcasters and pay TV providers if the latter seek to “import” out-of-market TV station to provide content during a blackout by an in-market broadcaster.
Lake refuted broadcasters' claims in the docket on retransmission consent issues (MB Docket No. 10-71) that elimination of the rules would be a giveaway to cable operators by allowing them to retransmit copyrighted material without paying for it, as required under the retransmission consent regime established in the 1992 Cable Act.
Lake said that even without the rule, contract terms between broadcasters and their affiliated networks and other business partners may still be able to help enforce exclusivity provisions without the need for the FCC to step in. “They will have multiple means of enforcing those provisions without the additional device of an exclusivity complaint to the Commission, which has scarcely ever been filed,” he said.
“As Chairman Wheeler explained, these 50-year old rules are past their prime in light of the significant statutory and marketplace changes that have occurred since their adoption,” Lake said in reference to Wheeler's Aug. 12 announcement about the proposed order.
NAB, the top broadcasting trade association, said that neither Wheeler nor the Media Bureau have been able to identify any consumer benefit to eliminating the rules, according to an e-mailed statement. The group pointed to provisions in the STELA Reauthorization Act of 2014 that, it said, provide broadcast exclusivity protections in negotiations with satellite TV providers as underscoring the FCC's role in helping preserving localism.
“We're hopeful other FCC members will reject this government giveaway to Big Cable,” NAB spokesman Dennis Wharton said in the statement.
Broadcasters have said that the network non-duplication rules and syndicated exclusivity rules are inextricably linked to—and help to offset—compulsory copyrights and carriage rules. These copyrights and carriage rules allow cable providers to retransmit broadcaster programming “at government-established, below-market rates, without bargaining for such content in the marketplace or incurring any transaction costs,” according to a Sept. 15 NAB agency filing.
In his blog post, Lake teed up the possibility that the FCC may reexamine the need for the compulsory license regime for cable and satellite providers at a future point, but said they didn't provide a rationale for retaining the exclusivity rules.
To contact the reporter on this story: Lydia Beyoud in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Keith Perine in Washington at email@example.com
Text of the FCC's blog post is at https://www.fcc.gov/blog/time-has-come-end-outdated-broadcasting-exclusivity-rules.
Text of the NAB's ex parte filing is at http://apps.fcc.gov/ecfs/document/view?id=60001323986.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)