Press Releases & Advisories

On March 3, 2011, the FCC issued a notice of proposed rulemaking (“NPRM”) requesting public comment on proposals to streamline the “retransmission consent” rules governing satellite and cable carriage of broadcast television stations.  Comments are due 60 days after the NPRM is published in the Federal Register (an event which has not yet occurred); reply comments are due 30 days thereafter. 

By way of background, the Communications Act generally prohibits satellite and cable operators from retransmitting broadcast signals without consent.  In the wake of market changes—and several high-profile disputes involving broadcast signals—a group of cable and satellite operators last year asked the FCC to review the legal regime governing retransmission consent.  This NPRM commences that review and proposes several rule changes, including the following:

• The Commission tentatively concludes that it does not possess legal authority to order interim carriage during, or mandatory arbitration of, retransmission consent disputes.
• The Commission seeks comment on eliminating the “network nonduplication” andsyndicated exclusivity rules.  These rules permit television stations with exclusive contractual rights to network or syndicated programming to enforce those rights at the FCC against cable operators.  In other words, the rules provide remedies in addition to any contractual and copyright remedies broadcasters may have.
• Broadcasters, cable operators, and satellite providers must negotiate in “good faith.”  The Commission seeks comment on whether those rules should provide that the following conduct does not constitute good faith:
• A station giving its network the right to approve or negotiate agreements.
• A station granting another station the right to approve or negotiate agreements.
• A party refusing to put forth bona fide proposals, or delaying negotiations.
• A party refusing to agree to non-binding mediation.
• A station seeking to forbid a cable or satellite operator from carrying out-of market, “significantly viewed” stations.
• Cable operators must provide notice before deleting stations.  The Commission seeks comment about this requirement, including whether it should apply to satellite providers and be extended to “potential” deletion in the retransmission consent context.
• Cable operators cannot delete stations during sweeps weeks.  The Commission seeks Comment on extending this prohibition to satellite providers and broadcasters. 

For more information regarding the Retransmission Consent NPRM, or Wiltshire & Grannis’s media practice, please contact Bill Wiltshire at (202) 730-1350 or wwiltshire@wiltshiregrannis.com, John Nakahata at (202) 730-1320 or jnakahata@wiltshiregrannis.com, or Mike Nilsson at (202) 730-1334 or mnilsson@wiltshiregrannis.com.

This advisory is not intended to convey legal advice. It is circulated as a convenience and is not intended to reflect or create an attorney-client relationship as to its subject matter.