ACA Opposed To NAB’s Quiet Period Dates

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Washington—In a controversial proposal, The National Association of Broadcasters on Tuesday announced that its TV station members would not pull their signals from cable systems from Feb. 4, 2009 to March 4, 2009 in an effort to ensure a smooth digital TV transition on Feb. 17, 2009.

NAB's commitment—which it said it vetted with Federal Communications Commission chairman Kevin Martin—was immediately questioned by the American Cable Association, a trade group for small cable operators that regularly complains about broadcasters’ hardball negotiating tactics.

From ACA's perspective, NAB's so-called quiet period commitment was deficient because if a TV station is legally withholding its signal on Feb. 3, the arrival of Feb. 4 would not require the station to give the cable operator quiet period carriage rights.

“While we appreciate those NAB members’ willingness to embrace a retransmission consent quiet period, a start date of Feb. 4, 2009 is simply too late and will not go far enough to protect consumers, whose signals could be pulled by broadcasters before Feb. 4,” ACA president Matt Polka said in a prepared statement.

Jack Sander, senior adviser to Belo Corp. and NAB’s joint board chairman, said he expected criticism from some pay-TV distributors.

“We're focused on the DTV transition. They're are focused on retransmission consent. Those are two very different sets of business issues,” Sander said.

Sander also argues that NAB’s quiet period was effectively eight weeks long because the Nielsen Co. will be conducting nationwide TV audience ratings from March 5 to April 1. Under FCC rules, cable operators may not drop TV stations during the ratings or “sweeps” period.

NAB, Sander said, wasn’t capable of requiring its TV station members to postpone any of their cable carriage disputes until early April.

“We cannot legislate that,” he said. “That’s a business decision between the cable company or satellite provider and the local broadcaster.”

NAB’s plan departs from dates proposed by Martin. FCC officials said Martin has recommended two quiet period options, from either Jan. 15, 2009 to Feb. 28, 2009, or Dec. 15, 2008 to Feb. 28, 2009.

Sander, who spoke with Martin by phone on Monday, said he didn’t sense any resistance from the nation’s top media regulator.

“I don't want to speak on his behalf, but [Martin] seemed fine with it,” Sander said. “He said his dates had just been kind of floating around in his min. There was nothing magic about his dates.”

An FCC spokeswoman said Martin supports a quite period.

“He is open to options, but he has not made a decision on this one,” she said.

ACA members have proposed starting the quiet period from the day of FCC approval (presumably before Jan. 1, 2009) until May 31, 2009.

“Any voluntary quiet period that does not begin before the agreements actually expire—or which is too brief to preclude potentially confusing messages about broadcast carriage during the time of the actual DTV transition—represents the illusion of a commitment and does not serve the consumer,” NCTA president Kyle McSlarrow said in a statement.

On Oct. 1, TV stations have to elect whether to demand or negotiate cable carriage. Cable operators typically are not allowed to carry TV stations after Dec. 31 if stations that elected to negotiate have not signed a deal.

Deadline extensions to prevent signal interruption have not been uncommon in the past. But pressure on cable operators to ink deals starts to rise as the National Football League’s Super Bowl championship game nears. The 2009 Super Bowl is scheduled to be played on Feb. 7 in Dolphin Stadium in Miami.

Small cable operators are particularly concerned about losing access to local TV signals in January and the possibility that those disputes could frustrate and confuse consumers around time of the DTV transition six weeks later.

“Many [TV carriage] contracts are coming up at the end of the year,” Polka said. “I know [FCC] commissioner [Jonathan] Adelstein has supported the Dec. 15 date, for the very reason the contracts would be expiring at the end of the year. This would prevent any kind of ability of broadcasters to leverage that to the detriment of our members and certainly their customers.”

NAB’s quiet period commitment does not cover CBS Inc. or News Corp. because they dropped their NAB memberships years ago over lobbying strategy related to FCC regulation of TV station ownership.

“While we support a quiet period around the digital transition, we strongly believe that all affected parties should be involved and reach a consensus on the parameters before moving forward,” a News Corp. spokesperson said.

CBS officials also issued a statement Tuesday afternoon.

“CBS has done many retrans deals with large and small cable operators with absolutely no disruption to the audience we share,” CBS officials said in the statement. “We see nothing in our current negotiations that leads us to believe that will change, so we see no need for the kind of ‘quiet period’ sought by some cable operators.”

“We will of course continue to work with the NAB and other broadcasters to make certain our free marketplace retransmission consent rights are preserved even as the industry works to assure a smooth digital transition,” it concluded.

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