Incompas, ITTA, NTCA, Public Knowledge Set Sights on 'Totality' NPRM, Plan Joint Advocacy

The four groups plan to advocate before the FCC both jointly and separately, members said, with the first big focus being on docket 15-216 -- the FCC's NPRM on possible changes to its "totality of circumstances" test in retransmission consent good-faith negotiations. "The FCC teed up all the appropriate questions on that NPRM," Genny Morelli, ITTA president, told us. "We'll be spending considerable effort on advocating in that proceeding." Among the changes Networks will be pushing will be elimination of non-disclosure agreements limiting the ability of MVPDs to divulge retransmission terms and rates to anyone, including regulators, and the pricing differentials paid by large and small MVPDs for the same content, Morelli said. "We know the charges were being assessed for content are greater than what the larger incumbent MVPDs are paying. We think the difference in prices between us and the larger incumbents is unreasonably discriminatory." The groups also will push for changes to retrans rules that would ban forced bundling of programming, she said.

While the joint group's immediate focus is retrans, "that's not all the group is for" because it may get involved in larger questions if Congress begins a rewrite of the existing video statutory structure, Public Knowledge Senior Staff Attorney John Bergmayer said in an email. Meanwhile, aside from the good-faith regulatory issues before the FCC, "opening up the set-top box market, and allowing for online MVPDs, could also improve the video marketplace for consumers,“ he said.

The survey was done online, the results coming from 226 NTCA and Incompas member companies, with a 6 percent margin of error, the two said. The survey's aim was to quantify the fact "broadcasters have all the power" over new or small MVPDs, though it may also end up useful if Congress decides to address the broader regulatory structure of the video marketplace, Canfield said.

Ninety-five percent of respondents pointed to price as the biggest hurdle to offering video, according to survey data, followed by making a business case/competition with other providers (both at 53 percent) and the cost of needed customer premise equipment such as set-top boxes (36 percent). In their current contract cycles, 40 percent of surveyed MVPDs saw retransmission consent fees up more than 100 percent from the previous contract, with 11 percent reporting a more than 200 percent increase, the survey said. Thirty-five percent of respondents saw retrans fees up by 51 to 100 percent, according to the survey. Meanwhile, 38 percent of respondents said cost of non-broadcast programming went up 0 to 10 percent between the most recent and current contract cycle, while 41 percent reported increases of 11 to 20 percent, according to the survey.

Many of the retrans consent negotiation practices that are subject to the totality of circumstances examination -- with the FCC asking whether they should be considered evidence of bad-faith bargaining -- are commonplace, according to the survey data. Sixty-nine percent of those surveyed said they had a broadcaster make them take non-broadcast programing or services such as less-popular networks, duplicative stations, or multicast streams, while 65 percent faced retrans restrictions such as tier placement or subscriber penetration requirements, and 49 percent were threatened with blackout of a broadcast station or network around a marquee event. Forty-four percent said they had to take part in broadcast contract negotiations involving a network representing affiliates or a third party representing multiple non-commonly owned stations in different markets, according to the survey.