Any broadcasters that previously engaged in joint retransmission...

FCC approved the order along with an FNPRM at Monday’s monthly commission meeting (CD April 1 p11). The prohibition will take effect after the effective date of the report and order, “regardless of any terms included in any pre-existing agreements between broadcasters allowing or requiring such negotiations,” said Fletcher Heald’s Dan Kirkpatrick in a post on the broadcast law firm’s blog (http://bit.ly/1jZd5Xc). Existing agreements entered into as a result of joint negotiation won’t be disturbed, “but no new agreements based on joint negotiations will be allowed, even if negotiations have already begun,” he said. The order lists activities that define joint negotiation, including “any informal, formal, tacit or other agreement and/or conduct that signals or is designed to facilitate collusion” on retransmission consent terms between top-four TV stations that aren’t commonly owned and serve the same designated market area, the order said (http://bit.ly/1jZekFI). The commission declined to address whether joint negotiation by same-market multichannel video programming distributors should be considered a violation of the duty to negotiate retrans in good faith, it said. The FNPRM seeks further comment on whether syndicated exclusivity rules are still needed to protect broadcasters’ ability to compete in the video market, it said. It also asks to what extent would local stations’ audiences “likely be diverted to distant stations carried on cable systems if the exclusivity rules were eliminated?” Joint negotiations probably would be ill-advised, even if an MVPD wants to negotiate in that manner, Kirkpatrick said. “The new rules don’t provide any exemption for MVPD consent.” Regardless of what happens with exclusivity rules, absent a court challenge, the issue of joint retrans negotiations between same-market top-four stations has now been decided, he said.