Fallout of Dish/Sinclair Near-Blackout on Retrans Rulemaking To Be Seen
That a high-profile broadcast blackout on DBS was narrowly averted during the pendency of a draft retransmission consent NPRM may mean the spat gets more than usual attention, both sides on the issue agreed in interviews Monday. It's an open question, though, whether that will translate into any changes in how the commission addresses retrans, stakeholders said. Dish Network complained Saturday to the FCC on Sinclair's bargaining tactics, then Sunday put the complaint on hold as the two companies continued both contract talks and carriage. The draft NPRM would spell out whether a variety of retrans practices might constitute either a per se violation of "good faith" negotiating or could be considered as part of a totality of circumstances test of good faith (see 1508140031).
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Every national dispute, such as the Dish and Sinclair spat, "does draw the attention of lawmakers and policymakers in D.C.," said Thomas Larsen, Mediacom senior vice president-government and public relations. While it's easier to ignore retrans fights in midsized markets, "[w]hen it starts to hit the bigger markets or affects hundreds of thousands or millions of Americans at once, they pay more attention," he said. "It highlights there is an issue to be addressed." At the same time, Larsen said, such complaints -- usually withdrawn as both parties come to a new retrans agreement -- end up accomplishing little because the underlying issues never get ruled upon. While multichannel video programming distributors would like a more solid definition of good faith rules, the FCC's not having to rule on complaints such as Dish's means the MVPDs "remain in the dark," Larsen said.
The narrowly avoided blackout for Dish customers of stations controlled by Sinclair or with which the broadcaster has a joint negotiating agreement "is almost regulatory blackmail when [Dish] announces threats of a potential interruption of service to get FCC attention" while the FCC is about to launch a retrans rules review, an NAB spokesman said. "This is hysteria that pay TV companies are deliberately trying to create."
Sinclair "is seeking to intentionally harm and exploit millions of innocent consumers to gain negotiating leverage," Dish said in a retransmission complaint dated Saturday posted Monday in docket 12-1. "Because DISH offered to retroactively 'true-up' Sinclair when new rates were agreed upon, Sinclair has nothing to lose and consumers have everything to gain from an extension of DISH’s existing contract that would allow negotiations to continue. Instead, Sinclair has rejected DISH’s offer and has chosen to use innocent consumers as pawns to gain leverage for the economic benefit of Sinclair."
The blackout would have blocked Dish customer access to 152 local channels in 79 markets, Dish said. In a letter to the FCC dated Sunday, Dish said it wanted a stay and hold on its retrans complaint because Sinclair had agreed to a temporary contract extension as the two negotiated. Neither Dish nor Sinclair commented Monday.
The timing of the FCC looking into retrans issues "might make certain broadcasters behave more carefully," Larsen said. Others might negotiate "more aggressively because things are going to change or they think things are going to change. 'Maybe I try to take everything I can in this round,'" he said.
NAB has said it predicts more blackouts and programming impasses timed to the FCC retrans review (see 1507140021), the aim being to put the agency "on notice the other side is playing games and would use this review as an opportunity," the NAB spokesman said. "Dish is kind of the star bad actor in the disruption game. They have had more disruptions in service -- they play this game of charades better than anybody else.”