Hill May Offer Retrans Help

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Washington — As a general rule, broadcasters prefer
more deregulatory Republicans as the majority in Congress.
But they may have to be careful what they wish for if signs
from the Senate and House communications oversight committees
are any indication.

Sources said the Senate Commerce Committee is
considering holding a hearing on a bill — something of
a deregulatory chainsaw,
sponsored by Republican
friend of cable Sen. James
De Mint (R-S.C.) — that
would remove media-ownership

That’s something broadcasters
wouldn’t mind, but
the bill would also scrap the
must-carry and retransmission-
consent regimes that
govern how broadcasters
are carried by pay TV providers.
Such a move mirrors
the view of House Republican
staffers that those rules
represent government intervention
in the otherwise free

If Republicans take back the Senate, DeMint could replace
Sen. Jay Rockefeller (D-W. Va.) as chair of the committee.
Either way, regulatory reform will likely be on the
agenda in the next Congress, and retransmission consent
could be up for discussion.

Broadcasters do not appear too concerned about the
DeMint effort, given the lack of co-sponsors in the Senate,
or for a House version introduced by Rep. Steve
Scalise (R-S.C.).

But House Republicans have already shown their stomach
for Federal Communications Commission reform,
passing a bill in the full House earlier this year and signaling
two weeks ago that all communications regulations
were on the table.

In a memo written in advance of a House hearing on
the future of video two weeks ago, Republican staffers on
the House Energy & Commerce Committee were making
all the right noises about the FCC not stepping into
retransmission-consent negotiations to force broadcasters
to keep providing their signals to cable operators during
impasses, or by mandating outside arbiters. Broadcasters
have been making those arguments to the FCC to counter
cable’s arguments that both measures are needed.

The Republicans didn’t stop there. They also took aim at
the must-carry regime,
saying it put a government
thumb on the scale
through must-buy and
basic-carriage mandates
that require cable operators
to offer must-carry
stations on the basic tier
and require subscribers
to buy a tier with those
channels before they can
get premium networks.

In the hearing that followed,
both Republicans
and Democrats indicated
there were reasons to
revisit 20-year old communications
— the retrans/must-carry system was created by the Cable
Act of 1992. Rep. Greg Walden (R-Ore.), the subcommittee
chairman, said the current communications regulations
are from a bygone era.

Walden said there were two options: Start scrapping cable,
satellite and broadcast regulations, or expand the current regime
to cover new media. He made his preference clear.

“I, for one, do not believe we should be expanding video
regulations,” he said.

Even broadcasters appeared to add some fuel to the fire
when Hearst Television president David Barrett agreed
with one legislator that blackouts were not fair to consumers,
no matter how infrequent they were — cable operators
have been pushing the FCC to mandate carriage during

The National Association of Broadcasters — Barrett was
speaking for the group — followed up with a clarification
that what he was saying was that it was not fair to consumers
“that some pay TV providers are manufacturing a
fake crisis and resisting paying a fair price for our mostwatched

The American Television Alliance, the cable and telcobacked
coalition promoting retransmission-consent reform,
would not let that comment go without trying to
capitalize on it.

“We appreciate the broadcasters’ acknowledgement
that consumers have been used as pawns,” it said following
Barrett’s testimony. “We assume the NAB will immediately
advise its members to stop using blackouts and
blackout threats as a negotiating tactics. This should put
an end to blackouts moving forward.”

Under chairman Julius Genachowski, the FCC has not
shown any interest in expanding its role in retransmission
comsent. That comes as no surprise to National Cable &
Telecommunications Association president Michael Powell,
who chaired the FCC under President Bush.

At a Paley Center for Media luncheon last month, Powell
said retransmission consent was one of those no-win
issues that FCC chairmen historically warn their successors
to stay away from.

During high–profile impasses over the past couple of
years — like the 2010 battle between Fox and Cablevision
Systems, where Congress put some pressure on the
FCC to step in — Genachowski noted the commission’s
limited authority in the area; Powell agrees that is the

The commission did open an inquiry. It proposed
providing better definitions of negotiating in good faith
and shook the big stick of suspending exclusivity rules
during impasses, but it has taken no action in over a

Genachowski has also said he was fine with Congress’
stepping in to clarify its view of the process. Lawmakers
may be fine with that, too.