NAB, ATVA, Mediacom Take Retrans Arguments to FCC

Both broadcast and cable interests continue to lobby the FCC on proposed changes to retransmission consent negotiation rules. People who have been part of recent retrans ex parte meetings told us the agency doesn't seem ready to circulate soon for commissioner approval new rules for the totality of circumstances test for good-faith negotiations, with the FCC perhaps still trying to figure out what it plans to do. But, given the agency staff taking part in those meetings, it seems likely the FCC is intent on getting feedback on the NPRM on 15 negotiation practices (see 1509020061). In a meeting with Chairman Tom Wheeler aide Jessica Almond, NAB said it cited the pro-competitive aspects of bundling, such as efficient economies of scale and cost savings, and the role they play in fostering creation of new and diverse programming, said a filing Thursday in docket 15-216. NAB also said multichannel video programming distributors "are the true masters of the bundle" with their double-, triple- and quadruple-play packages, "sometimes giving consumers little or no choice to select just one service if they prefer." NAB said the FCC should be "tickle[d] that MVPDs -- in this one instance -- are asking for the government to intervene to severely curtail or eliminate completely the ability of broadcasters to offer programming bundles." NAB also said it backs changing or eliminating media cross-ownership rules, citing "today's intensely diversified media marketplace." The American Television Alliance and member Mediacom, meanwhile, met with Media Bureau and Office of General Counsel staff to argue the FCC has authority to direct broadcasters to grant retrans consent for a limited period, said a Thursday filing in the docket. While Congress said MVPDs can't retransmit a broadcaster signal without that broadcaster's consent, lawmakers never limited FCC authority to require a station to give consent on a limited-time basis, ATVA/Mediacom said. Instead, Section 325 of the Cable Act and sections 201(b) and 303(r) of the Communications Act are sources of FCC authority to adopt such a rule, they said: "It is safe to say that there is virtually no part of a broadcaster's operations that are within its 'unqualified' control and immune from the Commission's regulatory authority absent an express and specific withdrawal of that authority by Congress." ATVA/Mediacom also said the FCC's requiring that a broadcaster consent to interim carriage would be akin to its authority to deem an interim franchise to have been granted to a competing cable operator after a franchising authority failed to act on a pending franchise application. Congress directed the agency to prohibit unreasonable denials of franchises, and the FCC would be now allowing unreasonable denials of retrans consent by requiring interim carriage, they said.