ACA Connects says Gray Television's contractual prohibition on granting carriage of a TV station to MVPD C Spire Fiber makes a mockery of the FCC's good faith retransmission consent negotiations and market modification process.
That came in comments to the FCC on C Spire's retrans complaint and request for declaratory ruling.
Earlier this month, Telepak Networks, Inc. (C Spire Fiber) filed the complaint alleging lack of good faith bargaining, and asked for a declaratory ruling that when the FCC modifies a market to add communities served by a significantly viewed station, that that station's digital streams are also considered to be in that market for the purposes of retrans negotiations.
In 2018, CBS lined up Raycom's (now Gray's) WLOX Biloxi-Gulfport, Miss., to air the CBS network programming on its digital subchannel since Biloxi lacked a CBS affiliate.
According to C Spire Fiber, WLOX is significantly viewed in Diamondhead, Miss., was deemed such by the FCC in response to a market modification petition, but that Gray, at CBS' insistence, won't negotiate for carriage of that CBS subchannel unless C Spire also carries WWL the designated in-market New Orleans CBS affiliate, which is owned by Tegna.
C Spire said that while Gray did discuss the situation, CBS essentially required it to condition the subchannel on WWL carriage pursuant to terms of its network affiliation agreement, which C Spire suggests is trumped by the good faith bargaining requirement.
A CBS source confirmed that there was language in the contract that allowed Gray to negotiate carriage of WLOX and the subchannel, but only if C Spire also carried WWL, which the source said was standard language in its affiliation contracts to protect the in-market station in retrans disputes.
"Gray, in other words, has essentially contracted away the station’s ability to negotiate (or have another negotiate on its behalf) in good faith as required by the Commission’s rules," said ACA Connnects. "This makes a mockery of the market-modification process that Congress promulgated to promote the availability of local, in-state news. And it violates the good-faith negotiation rules, which do not permit networks to preclude the negotiation of retransmission consent in their affiliates’ own markets—regardless of what other role networks may legitimately play in retransmission consent negotiations."
ACA says Gray is violating the FCC's good faith bargaining requirement, but if there is any ambiguity, it wants the FCC to clear it up and declare "that a broadcaster must negotiate retransmission consent with an in-market MVPD regardless of any restrictions in its network-affiliation agreement."
