Broadcasters Target Bundling, Marquee Blackout, Interim Carriage in Retrans Lobbying

Broadcasters took aim at interim carriage, bundling and blackouts of marquee events proposals by MVPDs as part of FCC totality of circumstances reforms. In a joint filing Thursday in docket 15-216, the ABC, CBS, FBC and NBC TV affiliates associations said any FCC regulation in those areas "would be unlawful, unwise and contrary to the public interest." The broadcasters said what they called "forced carriage" -- requiring broadcasters to allow their signals to be carried by MVPDs during contract disputes -- would violate Section 325(b) of the Communications Act, which says MVPDs can retransmit local TV broadcasts only with a station's consent. MVPDs point to unrelated Communications Act portions in their arguments the FCC can require carriage -- an argument broadcasters called meritless.

The broadcasters disputed an American TV Alliance argument (see 1603250054) that a 1990 FCC injunction against Time Warner Cable is proof of FCC ability to overcome that Section 325(b), saying that was "a specific and unique statutory limitation" the commission was enforcing, and one repealed by the Satellite Television Extension and Localism Act Reauthorization Act. The broadcasters also said MVPD complaints about bundling smack of hypocrisy. "MVPDs more or less built today's video services marketplace and perfected the practice of building multiple video services into a single deal" in the 1980s and '90s, they said, saying "forced" bundling is a misnomer since MVPDs can always decide not to make a retrans deal. Restrictions on bundling "would drag the FCC down the rabbit-hole of endless litigation and dispute," with the agency having to weigh specifics in a broadcaster's offer, such as rates, they said. The broadcasters also defended the economics of bundling. They said the marquee language would have the FCC trying to decide what constitutes marquee programming, and open the possibility that a loose-enough definition could leave the calendar peppered with such events. "And presto, what today is a subject for back-and-forth negotiations tomorrow would be set by government order," the opposite of what Congress wanted when it established a free-market mechanism for retrans, the broadcasters said.

“Broadcasters pulled the plug on American consumers 193 times in 2015, a new single-calendar year record," ATVA said in a statement Friday. "In 2010 there were only eight blackouts nationwide. Last year, blackouts affected 12 million American homes -- one of every eight pay TV subscribers. The Affiliates’ latest letter contains nothing new. More importantly, they ask the Commission to ignore the harm caused when they black out signals. If anything, the Affiliates’ filing demonstrates that the record in this proceeding is complete and the Commission can now take action to protect consumers.”

Mediacom said its proposal doesn't seek interim carriage, as alleged by some foes of what MVPDs seek. In an ex parte filing in the docket Thursday, the operator recapped a call between Senior Vice President-Government and Public Relations Thomas Larsen and Commissioner Jessica Rosenworcel aide Marc Paul on the cable company's "cooling off" proposal (see 1603040050). Mediacom said bundling issues could be addressed by distinguishing between mandatory and permissive terms, and not allowing the parties to negotiate to impasse over a permissive but nonmandatory term such as the carriage of a nonbroadcast network. The company said the pending set-top box rulemaking "could have unintended consequences" for the plans of companies such as Mediacom to invest in their broadband networks. Friday, the White House backed the set-top box proceeding (see 1604150003).