The American Cable Association wants the FCC to go beyond removing regulations that prevent cable operators from importing out-of-market TV stations to expressly prohibiting broadcast networks from discouraging or preventing their affiliates from negotiating that exclusivity through contracts, particularly as concerns historically significantly viewed stations.
ACA says the FCC could make that a per se violation of good faith negotiation or clarify that it already violates the good faith requirement. The FCC is currently reviewing the definition of good faith negotiations per congressional directive.
FCC chairman Tom Wheeler has also separately circulated an order eliminating the network nonduplication and syndicated exclusivity rules. Those currently prohibit cable operators or other MVPDs from importing out-of-market programming identical to that offered by in-market stations. That is a way to preserve program exclusivity for local stations, but also to prevent importing out-of-market stations when in-market programming is not airing due to retrans blackouts.
ACA, in a letter to the FCC, has asked the commission to prohibit TV networks from "blocking or disincentivizing" their affiliates from signing retrans contracts with out-of-market cable operators, particularly involving traditionally viewed stations.
"Without restricting broadcast network interference, the repeal of the rules - and the Chairman's assertion that the government should not have a role in determining the scope of a local broadcaster's exclusivity - will give the networks a clear sign that the FCC does not object to the networks' blocking or disincentivizing MVPDs from carrying out-of-market stations that have been a part of their service for decades," said ACA president Matt Polka in announcing the letter. "The FCC should block the networks from both disrupting the market and cutting off consumers from receipt of more local news, weather and emergency reports broadcast by adjacent-market stations."
"Concerns about network interference are not limited to cable operators alone as some broadcast station groups have also expressed frustration with their networks' interference in their ability to reach agreements with cable operators to continue serving communities that they've served for decades," Polka said in a statement. "When local broadcasters and cable operators both want to provide a more local service to customers who have been disenfranchised by an outdated DMA system, the FCC shouldn't allow executives in New York and Los Angeles to interfere with such local decisions that serve the public interest."
Expanding Opportunities for Broadcasters Coalition president Preston Padden took issue with the ACA request. He has pushed for getting rid of the exclusivity rules, but not replacing them with others and also eliminating the compulsory license that ensures cable access to TV station programming without individual marketplace negotiations he says would result in more programming dollars for stations.
"ACA's outrageous proposals show the urgent need to repeal the cable compulsory license and transition broadcasters to a pure copyright environment for their negotiations with all distributors who would like to retransmit the broadcasters' programs," Padden told B&C in response to ACA's letter. "In a copyright negotiation the buyer and the seller, not the government, decide whether the license is exclusive."
