The Federal Communications Commission shouldn’t use the digital television transition next February to justify interfering in upcoming carriage negotiations between local TV stations and pay TV distributors, according to the National Association of Broadcasters.
The NAB is fighting a cable-industry proposal that would prevent local TV stations from pulling their signals from Dec. 31, 2008 to May 31, 2009 as a way of ensuring that carriage disputes don’t interfere with the cutoff of analog TV signals on Feb. 17, 2009.
There is no chance that consumers will confuse a retransmission-consent dispute that began in December or January with some kind of equipment failure or other snafu connected to the DTV transition in February,” said Marsha MacBride, the NAB’s executive vice president of legal and regulatory affairs, in a Sept. 8 letter filed with the FCC.
MacBride added that the FCC didn’t have legal authority to stop TV stations from withholding signals from a cable or satellite TV company, regardless of the unique circumstances surrounding the DTV transition.
“Regulatory interference in such negotiations was never contemplated by Congress, and is contrary to congressional intent,” MacBride said.
Every three years, TV stations can demand compensation from pay-TV providers in return for carriage, a process formally called retransmission consent.
The negotiation period opens Oct. 1. Incomplete deals could result in the loss of local TV signals in cable and satellite-TV homes after Dec. 31.
After Feb. 17, all full-power TV stations must transmit digital signals. The upcoming round of carriage negotiations — if it produces bitter clashes — could confuse consumers who are preparing for the DTV transition by subscribing to cable or satellite TV for the first time and expecting to see all their local broadcasters.
The NAB has proposed its own voluntary “quiet period” from Feb. 4 to March 4, during which TV stations promise not to pull their signals.
According to the NAB, 75% of commercial television stations have pledged to honor the quiet period.
The cable industry has argued that a quiet period needs to begin before Dec. 31, the date when thousands of retransmission consent contracts expire. Otherwise, TV stations can withhold their signals before Feb. 4 without violating the NAB’s voluntary quiet-period commitment.
“The only meaningful quiet period that will not interfere with the broadcasters’ own digital transition is one that begins before the existing retrans agreements expire, so the broadcasters faux proposal falls woefully short,” said National Cable & Telecommunications Association spokesman Brian Dietz.
Cable’s request for an FCC quiet period was filed at the agency on April 24, 2008 by a group of cable operators, including Charter Communications, Suddenlink Communications and Mediacom Communications, which serve about 8 million subscribers combined.
The NAB outlined its concerns about an FCC-imposed quiet period during a Sept. 5 meeting with Amy Blankenship, an aide to Republican FCC commissioner Deborah Taylor Tate, according to MacBride’s letter.
FCC chairman Kevin Martin has floated his own quiet periods, either Dec. 15, 2008 to Feb. 28, 2009 or Jan. 15, 2009 to Feb. 28, 2009. FCC adoption of either would violate the Administrative Procedure Act because the agency so far has not sought public comment on a mandatory quiet period, according to NAB.
Some previous retransmission consent disputes have ended just days before the Super Bowl, the NFL championship game aired by one of the Big Four networks to a massive national and international audience.
MacBride acknowledged that the Super Bowl and college football’s Bowl Championship Series give local TV stations clout over their pay TV distributors, which run the risk of angering their customers if they are not carrying the big games.
“Many broadcast events occur in the early part of 2009,” MacBride explained. “Suspending broadcaster retransmission-consent rights for a period longer than Feb. 4 [through] March 4, 2009 would shift significant negotiating leverage from broadcasters to [pay TV providers], without any offsetting public-interest benefit.”
The 2009 Super Bowl is scheduled to be played on Feb. 1 at Raymond James Stadium in Tampa, Fla.
American Cable Association president and CEO Matthew Polka weighed in on the matter in a statement sent via e-mail to Multichannel News:
“At last, the broadcasters have revealed their true motivation for opposing a quiet period that begins on or before January 1, 2009,” he wrote in the statement. “They say it would 'shift negotiating leverage away from broadcasters’ because 'many major broadcast events occur in the early part of 2009.’”
“With so many consumers still confused about what the digital transition means for them, the broadcasters should be ashamed of themselves for putting their own interests in profiteering ahead of the public interest,” Polka concluded.