FCC Retrans Notice No ‘Excuse’ for Any Lack of Good Faith, McDowell Says

FCC Commissioner Robert McDowell said broadcasters and pay-TV providers alike must negotiate retransmission consent deals in good faith and not deviate from that because of a forthcoming FCC rulemaking notice (CD March 1 p6) on retrans. Of the notice, set for a vote at Thursday’s agency meeting, he told an audience of broadcast executives visiting Washington to lobby on Capitol Hill for them and pay-TV rivals to “please don’t use this as an excuse” to not negotiate fairly. But most broadcasters and cable companies won’t wait for the FCC to change the dynamic, McDowell said Tuesday at an NAB conference. He also used FCC figures his office received to show that the agency is whittling down the number of indecency complaints against broadcasters, something he’s said should be reduced, although many license renewals are pending.

"One perhaps unintended consequence of the government taking action” on retrans, “even to open up a docket in an innocuous way, might be to raise expectations that the government will somehow intervene,” McDowell said. “And I hope the parties that are negotiating will not make that mistake,” he continued. “Please don’t rely on the government to make that deal for you.” The commission’s power over retrans is looking at whether either side hewed to good faith rules, McDowell said, as he’s stated before. The retrans notice is “narrowly tailored in some regards and not in other regards,” he said.

House Commerce Committee Chairman Fred Upton, R-Mich., opposed legislation on retrans, he said in a later speech at the NAB conference. “There are very few cases where we haven’t seen an agreement between the parties, and until we see otherwise, I would like to think we would not need to mandate” carriage arrangements, “but instead allow the private sector to negotiate” the deals, he said. Angry viewers provide enough pressure on the parties in the disputes, Upton added. He doesn’t want to see the commission arbitrating disputes either, he told reporters.

The Enforcement Bureau has been “quietly” dismissing indecency complaints that fall outside the agency’s purview, such as ones on shows broadcast during the safe-harbor period late at night and early in the morning, McDowell said in his Q-and-A with NAB President Gordon Smith. The number of shows with at least one pending complaint fell 42 percent from its height last year, to about 8,700 last month, he said. “That’s a significant drop … so hopefully we can stay on that same course,” McDowell added. “It is just good government to clear out that backlog.” A bureau spokeswoman couldn’t confirm the indecency and renewal figures.

Many of the 450 license renewal actions that are still pending for TV and radio stations are delayed because of indecency complaints, McDowell said. He was citing figures from the Media Bureau. There are about 315 TV stations awaiting renewals, and most of those involve enforcement holds for indecency issues, he said. Another approximately 135 radio stations are awaiting renewals, with 60 having enforcement holds, 52 being processed because of a potential rule violation and the rest held up because of missing information from the broadcaster, he said.

Whatever the FCC does on media ownership, its ongoing quadrennial review should have a “deregulatory flavor to it,” McDowell said. Debates over media ownership -- which Section 202(h) of the Telecom Act required the commission to review in 2010 -- sometimes forget that section charges the commission with deregulating when necessary, he said. “There’s competition all around us” and “it’s a good time to be a media consumer, it’s a little nervous if you're a broadcaster” because of competition from newer media including that online, he said. Of the current review, “we're still sort of waiting for the studies to be completed and peer reviewed,” which the regulator commissioned as part of its inquiry, McDowell noted. “The commission is taking its time, so hopefully the court decisions will shed light on what we could and can’t do.” The 3rd U.S. Circuit Court of Appeals in Philadelphia last week heard oral argument on challenges from industry seeking more deregulation and from nonprofit groups seeking less than what was in the last quadrennial review order, from 2007.

Upton believes media ownership rules “have not kept pace with the real world,” especially as broadcasters compete with the Internet, he said. The lawmaker lauded examples of cross-ownership of broadcasters and daily newspapers in his district, saying that sharing resources results in better news coverage.

As lawmakers look to free up spectrum for wireless, they must be careful to leave enough for terrestrial broadcasting, said Sen. Tom Udall, D-N.M. People take broadcasting for granted, but it’s critical for creating jobs and alerting people during emergencies, the Commerce Committee member said. Udall said building a nationwide, interoperable network for public safety is a “top priority” that wouldn’t be possible without broadcasters’ efforts in the DTV transition.

Udall plans to fight efforts to cut funding for public broadcasting, he said. “Federal support for these stations can be 10 percent or more of their budget,” he said. “These cuts would be disastrous for public broadcasting.” The broadcasting industry as a whole would “lose a consistent source of innovation,” said Udall. Julia Child and Ken Burns are two examples of people who used public broadcasting to pioneer what is seen on TV today, he said.