Small Cable Operator Challenges FCC Orders Granting Toledo Stations Market Exclusivity

A small Ohio cable operator challenged two recent Media Bureau orders that require it to delete out-of-market network programming that comes from nearby TV stations, two applications for review show. Buckeye Cablevision, which operates in Toledo, asked the commission to overturn orders removing two Detroit stations from the significantly viewed list at the separate requests of LIN’s Toledo Fox affiliate WUPW and Disney’s own Toledo ABC station WTVG. The appeals tie the question to the current issue du jour of retransmission consent policy.

"We think the network non-duplication rules are being used to eliminate over the air competitors that cable operators otherwise would be permitted to carry and therefore give the local broadcaster leverage in the retransmission consent negotiation,” said Dow Lohnes attorney Gary Lutzker, who represents Buckeye.

TV stations that are seeking retransmission consent fees should seek the kind of waivers being appealed here in order to make sure they have a fair footing in carriage talks, said Pillsbury Winthrop attorney John Hane, whose clients include LIN but doesn’t represent them in this matter. “Part of the business is cleaning this up and it should have been cleaned up years ago,” he said. Stations should “answer cable operators’s arguments on their own terms, and I don’t think they hold up,” he said.

The twin appeals also ask the FCC to look a discrepancy in the way it treats market exclusivity of broadcast network and syndicated programming. There are two exceptions from market exclusivity for syndicated programming. Cable operators are allowed to carry nearby syndicated programming that’s either significantly viewed over-the-air in their system area or from stations whose Grade B signal coverage contour overlaps with their service area. But network programming non-duplication rules have just the significantly viewed exemption, Lutzker said. The FCC looked at fixing that discrepancy in a 1988 rulemaking notice, but never finished it, the appeals say.

"Twenty-two years later, the fact that the Further Notice remains pending has created an unintended discrepancy in the Commission’s broadcast exclusivity rules,” the WUPW appeal said. “The undisputed fact that WJBK’s signal [from Detroit] covers Toledo illustrates this.”