MVPDs, Broadcasters Square Off in Totality of Circumstances Fight
Small multichannel video programming distributors and allies continue to press the FCC for changes to its totality of circumstances test, while NAB continues to push back, according to a series of ex parte filings Tuesday in docket 15-216. One pay-TV industry official told us Wednesday the uptick in activity in the docket shows the issue is being discussed by the agency. But eighth-floor action probably isn't imminent, though the agency is likely to do something before year's end, the official said.
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In a meeting with Commissioner Mignon Clyburn, the American Cable Association (ACA) pushed for the FCC to adopt its and the American TV Alliance's proposals on bundling in the agency's current review of the totality of circumstances test (see 1603090041) and for the agency to act on ACA's proposal to change the program access rules to allow buying groups like the National Cable TV Cooperative (NCTC) to file program access complaints, its filing said. ACA also said it urged the agency to follow its independent programming NOI with a rulemaking. Also at the ACA meeting were representatives of Atlantic Broadband, NCTC and Shentel who were panelists that day at an FCC workshop on indie programming (see 1604250036).
CenturyLink and ITTA President Genny Morelli, meeting with Media Bureau staff, asserted it should be per se evidence of bad faith negotiating for broadcasters to threaten to shut off access to its online programming during retransmission consent negotiations, demand per-subscriber fees for an MVPD's nonvideo customers, discriminate on pricing among MVPDs "without legitimate economic benefits" and prevent temporary importing of an out-of-market signal during a blackout, a filing said. It also said the agency should consider that certain broadcaster conduct may be evidence of not negotiating in good faith, including using crawls on channels to warn of possible retrans consent blackouts, insisting on bundling broadcast signals with other broadcast stations or cable networks, and tying contract expiration dates or threats of blackouts to marquee events. CenturyLink said it also recently had a broadcaster demand carriage of a bundle that included an unspecified channel to be launched later or pay a per-subscriber fee. "This puts the MVPD in an awkward spot of committing to carry a future channel without any information about the future channel," CenturyLink said.
And WTA Nex-Tech CEO Jimmy Todd also raised red flags with the Media Bureau about retrans negotiations increasingly including demands for carriage of nonbroadcast networks such as unnamed linear cable networks that might be launched in the future, a WTA ex parte filing said. "As with broadcast station demands for increased cash compensation for the broadcast signal that is the true subject of retransmission consent negotiations, these provisions tend to be non-negotiable in the vast majority of circumstances," WTA/Nex-Tech said. While broadcast networks and affiliates are fine with small MVPDs accepting the rates and terms handed to them, the FCC's retrans consent rules are about reaching an agreement acceptable to both sides, they said, saying good-faith negotiation rules should preclude bundling broadcast and non-broadcast programming without an economic alternative. Letting MVPDs negotiate for retrans consent with stations outside their designated market area, as well as a la carte pricing, would slow the rise in increasing retrans consent fees and increase consumer choice, they said.
NAB, in a meeting with FCC General Counsel Jonathan Sallet, repeated a frequent broadcaster point: the retrans consent market is not broken and big pay-TV distributors do not need more negotiating power. It also repeated its argument (see 1604260041) that the law is clear that rule changes forcing broadcasters to give pay-TV operators access to their signals would be illegal, a filing said.