Cable operator Shentel Communications Monday said that it did nothing outrageous in its retrans negotiations with Allbritton that would warrant FCC intervention. That came in response to a petition filed by Allbritton Communications last week asking the FCC to force Shentel to restore its WJLA Washington to some 8,200 Virginia customers.
In an emergency petition to the FCC, Allbritton had alleged that Shentel did not bargain in good faith, and had withdrawn a retransmission consent offer after Allbritton accepted it.
Shentel countered that its offer was no longer on the table by the time Allbritton decided to accept it.
Shentel stopped carrying the station Jan. 1, with a note to viewers that it had been "forced to drop the station from our cable line-ups...Shentel has tried to negotiate in good faith with the management of this television station to agree on a fair price for their programming. Negotiations have failed..."
The FCC currently has an open proceeding in which it has proposed to clarify what constitutes good faith bargaining in retransmission consent deals.
"Allbritton had ample opportunity to accept Shentel's offer and declined to do so," said Shentel in its response, a copy of which was provided to B&C/Multi. "[Allbritton] errs in now urging the Commission to penalize Shentel and its customers for [its] own mishandling of retransmission negotiations."
Shentel says that rather than having an offer on the table, its last offer was superseded by counter offers by Allbritton. "It is well established that a counter-offer that does not mirror the offer itself constitutes a rejection of the original offer," Shentel said.
While Allbritton contested that "none of Shentel's communications to Allbritton could reasonably be construed as withdrawing the Nov. 10 offer or breaking off negotiations," Shentel counters that the nothing could be cleared than the plain language of its Dec. 20 notification to Allbritton, in which Shentel negotiator David Ferguson said: "Regrettably, WJLA and Shentel have not been able to negotiate what we feel is a fair and equitable rate for the carriage of your station. This is notification that we will, as requested, remove WJLA from our cable system on Dec. 21, 2011."
Shentel said the offer that Allbritton did not take was 500% more than Shentel had been paying. It also says that it told Allbritton that the reason it was not offering WJLA a comparable fee to what it paid for Allbritton's Lynchburg, Va., affiliate was the availability of an alternative affiliate, WHSV, which was considered the local station for Shenandoah County, and the cost of transporting WJLA Washington to the county.
Shentel says Allbritton knew the cable operator might have to drop either WJLA or WHSV because of the price.
