Writers Union Backs Broadcasters in Retrans Comments, While Public Interest Groups Largely Support Distributors
Support for keeping the FCC’s retransmission consent rules as they are came from the Writers Guild of America, West (WGAW), as companies, public interest groups and trade associations filed their comments on the FCC’s proposed rulemaking before Friday’s deadline. Pay-TV distributors, which had petitioned the agency to change the rules, drew support from groups such as Citizens against Government Waste and the Free State Foundation, as well as the National Black Caucus of State Legislators. Those parties favored changing the rules to assure that distributors will be able to preserve carriage of TV stations during retransmission consent disputes.
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The existing rules favor broadcasters so much that new entrants into pay-TV distribution face paying much higher rates than incumbents, said the Indiana Utility Regulatory Commission (IURC). That hurts broadband deployment because new broadband services are often rolled out in tandem with video service, it said. The IURC said it would prefer that content owners adopt their own code for pricing content that wouldn’t undermine rural broadband deployments. “Failing such an industry response, the public interest requires the FCC and/or state commissions to act,” it said, raising the prospect for regional retransmission consent rules.
But changing the rules would shift the balance of power toward distributors, hurting “the ability of broadcast stations to seek appropriate compensation for network programming,” the WGAW said. “This would in turn reduce the revenue available for investment in new original programming nationally and locally, harming both content creators and consumers,” the union said. “Writers have an interest in seeing their content reach as wide an audience as possible and consumers want reliable delivery of the programming they pay to access and the local news on which they rely,” it said. “Any FCC action must be designed to serve these complimentary interests, rather than further enhancing MVPD market power,” it said.
The Sports Fan Coalition proposed a series of sports-centric changes to the rules, such as waiving blackout rules during disputes as well as waiving the non-duplication and syndication exclusivity rules. The coalition said it would “like to see the sports blackout rule eliminated entirely.” The commission has the authority to waive those rules during programming dispute, it said. Plus the timing of disputes is often pegged to major sports events, the coalition said. DirecTV also argued for eliminating broadcast exclusivity protections. Cable operators including Charter and Bright House said the rules need to be changed to protect consumers against increased programming costs.
If the FCC changes its retransmission consent rules, it will need to do a better job enforcing them, said Public Knowledge and the New America Foundation. They support rule changes favored by pay-TV distributors. “Without proper enforcement the current state of affairs will continue unabated,” they said. The FCC can fine stations $25,000 a day up to $250,000 for repeatedly failing to comply with its good faith negotiation rules, they said. “The Commission must exercise this power,” they said.
The NAB and broadcasters argued against changing the rules. Instead the FCC should just commit to enforcing its existing rules quickly, Granite Broadcasting said. “In only a handful of situations has an MVPD engaged in abusive, bad-faith tactics,” Granite said. “Unfortunately the complaints filed against these operators’ illegal conduct have been pending before the Media Bureau since late 2008,” it said.
The FCC shouldn’t change its retransmission consent rules, except for some narrow exceptions, NAB said. The FCC should expand to non-cable MVPDs the consumer notice requirements cable operators have for when programming is removed from their channel lineup, the NAB said. The commission should also make sure early termination fees don’t get in the way of customers changing their pay-TV provider, it said. And the commission should adopt rules to give broadcasters more access to information about MVPD ownership to help facilitate easier retransmission elections and communications, NAB said.
"All parties (except broadcasters) agree that consumers and the public interest would be far better served by new rules,” AT&T said in comments reflective of others seeking rule changes. “In today’s increasingly competitive video programming distribution market, they [the existing rules] enable broadcasters to whipsaw competing MVPDs by threatening to withhold must-have broadcast programming (in addition to cable networks controlled by broadcasters) made available to their competitors,” AT&T said.