Mass. Dispute Puts Retrans on FCC’s Radar

Sunbeam, DirecTV Reach Accord but Broader Fight Lives On in Washington

By John Eggerton -- Multichannel News, 1/30/2012 12:01:00 AM

Washington — The discord over retransmission-consent reached the nation’s capital again, prompting more than a dozen legislators to request FCC intervention in the nowresolved dispute between Sunbeam Television and satellite-TV provider DirecTV.

Had the fight dragged on, it would have affected Boston’s NBC affiliate — WHDH — on the eve of Super Bowl XLVI on Feb. 5, which will feature the hometown New England Patriots.

Even as the National Association of Broadcasters has emphasized that the 2011-12 retransmission negotiating season has been relatively quiet, access to must-have sports programming has typically been a driver of legislator concern.

And even though a settlement was reached last Thursday evening (Jan. 30), the Federal Communications Commission had been put on notice by Senate Communications Subcommittee chairman John Kerry (D-Mass.) that he would like to see some action in its open proceeding on retrans.

In letters to Sunbeam, DirecTV, and contacts with the FCC over the past 10 days, Massachusetts’ 10 House members, Kerry, Sen. Scott Brown (R-Mass.) and Sen. Jeanne Shaheen (D-N.H.) had indicated they wanted to see a deal done ASAP so that their DirecTV-subscriber constituents could see the National Football League’s championship game, and have pushed the FCC to step in to make sure that happened.

CONGRESSIONAL PRESSURE

A letter from the House delegation, led by Democrats Ed Markey, James McGovern and Barney Frank, said the lawmakers were concerned about how the impasse would have affected 200,000 Boston-area DirecTV subscribers. The congressmen encouraged both parties to negotiate in good faith and, as a backstop, said they had asked the FCC to bring the sides together so talks could conclude “in an equitable and expeditious manner.”

That is in addition to separate letters sent by Kerry and Brown, who also wanted assurances the Super Bowl would not be blacked out regardless of the status of negotiations.

In his letter, Brown said he was concerned that his constituents were being used as leverage in a business negotiation. “It is outrageous that subscribers would pay hundreds of dollars a year for service and not get to watch the Super Bowl, the biggest television event of the year,” he wrote. He also asked the parties to restore WHDH and WLVI, the Sunbeam-owned The CW affiliate in Boston, to DirecTV as talks continued.

Kerry pointed out in his letter that it was the third year in a row he has contacted the FCC about a retrans dispute, and urged the agency to complete its pending rulemaking on retrans reform.

For its part, DirecTV had said it was available anytime to resolve the deal, as long as it was a fair one.

In a letter to Massachusetts lawmakers last Tuesday (Jan. 24), DirecTV CEO Michael White said his company was available 24/7 to negotiate with Sunbeam management over the current retrans dispute involving the two Boston stations and WSVN, the Fox affiliate in Miami.

White’s letter was in response to those from Brown and the House delegation to DirectTV executive vice president of content development and strategy Derek Chang which asked that the two parties strike a deal, preferably before Feb. 5.

“The fact is that DirecTV has concluded more than 70 deals in the past year compensating each of those station owners fairly at market rates and we have been more than willing to do the same for Sunbeam,” said White. “[W]e will do everything possible to restore the NBC and CW stations for our Boston- area customers.”

An identical letter was sent to 10 House members in response to their letter and signed by Chang.

FCC WARY OF JUMPING IN

The FCC did not comment last week, but chairman Julius Genachowski has heard the call for retrans reform before and resisted it, reluctant to involve the agency in negotiations. In the past, he has pointed to the limits of the FCC’s authority in that area, which is to ensure good-faith bargaining.

But in its notice of proposed rulemaking on retrans, the FCC aims to clarify what constitutes good-faith bargaining, including determining which kinds of complaints would not justify follow-up.

In addition, the FCC has at least floated the idea of waiving the network nonduplication and syndicated exclusivity rules during retransmission-consent disputes, allowing pay TV providers to shop for similarly situated nearby local stations.