Time Warner Cable Seeks Dismissal of Nexstar-Mission Petition after Reaching Carriage Deal with Smith
The FCC should dismiss a Nexstar and Mission Broadcasting emergency petition that asks the FCC to bar Time Warner Cable from importing distant signals into some upstate New York markets during a retransmission-consent dispute with Smith Media (CD Dec 30 p2), TWC said in an opposition filed with the FCC this week. Beyond failing in its arguments, the petition is moot because TWC stopped importing the distant signals and reached a carriage agreement with the Smith stations, it said. Furthermore, “TWC’s importation of those distant signals did not violate any Commission rule (and, contrary to Nexstar’s suggestion, was expressly authorized under TWC’s retransmission consent agreement with Nexstar),” TWC said.
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Time Warner Cable’s standard retrans agreement offered to stations appears to be at the center of the dispute that led to the petition, said a broadcast attorney familiar with the dispute. The agreements say the station groups grant retransmission consent rights to TWC but don’t specify a geographic territory, the attorney said. “That really means anywhere. Stations think it means their local market, but it doesn’t,” the attorney said. “A lot of stations and groups, including some big ones, signed that form agreement. One of them appears to be Nexstar, but there were many others."
Because of the FCC and congressional involvement in retransmission consent rules, some stations and groups have had their regulatory counsel help negotiate those agreements, the lawyer said. “Just like contract lawyers aren’t necessarily good regulatory lawyers, some regulatory lawyers aren’t good contract lawyers,” the attorney said. “This isn’t the only thing in there that would give a normal contract lawyer heartburn.” Station groups that take all the proper steps to assert their network non-duplication rights won’t be prone to such maneuvers by cable operators, the attorney said.
Nexstar and Mission’s arguments that TWC violated FCC noticing requirements are wrong and misinterpret the purpose of those rules, TWC said in the filing. “The Commission has good reason to make sure broadcast stations receive sufficient advance notice before existing carriage of the station is affected -- i.e., being dropped from a cable system or moved to a new channel on that system -- but there is no comparable reason why a station requires such notice before a cable operator accords a benefit by expanding its viewership in out-of-market areas in which the station authorized the cable operator to carry it,” TWC said.
Viewer reaction to the dispute varied by market, said Vic Vetters, vice president and general manager of Smith Media’s northeastern properties. In The Burlington, Vt.-Plattsburg, N.Y., market, where TWC serves about 11 percent of TV households, there was very little reaction, he said. “Utica on the other hand was a much different story,” as TWC serves about 71 percent of the market, he said. As the dispute wore on, political pressure on both parties from local and regional government officials helped restart negotiations, he said. He declined to discuss the terms of the new contract.