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FCC Considers Changes to Retransmission Consent Rules

March 2011

The Federal Communications Commission (FCC or Commission) has adopted a Notice of Proposed Rulemaking (NPRM) to consider changes to its rules governing the negotiation of retransmission consent agreements.  The NPRM will also consider elimination of longstanding regulations that protect broadcasters' rights to program exclusivity, namely, the network non-duplication and syndicated exclusivity rules.

According to the Commission's News Release, the key objectives of the proceeding are to facilitate the negotiation of retransmission consent agreements and to minimize service disruptions to consumers.  

In the NPRM, the FCC concludes that it currently lacks statutory authority to impose mandatory arbitration or interim carriage in the event of an impasse between broadcasters and pay television operators.  The FCC will, however, consider other changes within the scope of its existing authority, including:

  • Strengthening the standards for "good faith" negotiations, including expanding the list of practices that constitute bad faith (for example, allowing networks to exercise veto power over the grant of retransmission consent by affiliates, or au­thorizing an entity to negotiate on behalf of a non-commonly owned station), and providing greater specificity for the "to­tality of the circumstances" test;
  • Enhancing notice to consumers of potential service disrup­tions, and obligating non-cable multichannel video program­ming distributors (MVPDs) and broadcasters (as well as cable operators) to provide consumer notices;
  • Extending to non-cable MVPDs the rule that prohibits cable operators from taking down a broadcast station's signal dur­ing a sweeps period; and
  • As noted above, eliminating network nondupli­cation and syndicated exclusivity rules so that MVPDs may import duplicating signals.

Comments are due 60 days after the NPRM is published in the Federal Register.  Reply Comments are due 90 days after Federal Register Publication.