The National Cable & Telecommunications Association told the FCC Tuesday (Dec. 1) that it should consider broadcasters' blocking of broadband customers' access to online programming "in order to extract a higher price for the carriage of broadcast signals" a "circumstance" that constitutes a violation of good faith bargaining requirements.
NCTA was filing initial comments to the FCC on its congressionally mandated rulemaking on what it should include in the "totality of circumstances" test for good faith negotiation violations.
While other cable ops produced a laundry list, NCTA focused on access to online content, something the FCC wants to ensure.
NCTA says that when broadcasters are owned by entities that offer online content generally available to anyone with a broadband connection, and access to said programming is blocked on a targeted basis to pressure operators to settle a retrans impasse that typically has nothing to do with that online programming, that should be deemed a violation of good faith bargaining.
NCTA said that if a cable operators blocked access to a broadcasters online programming as a retrans negotiation tactic, customers would be similarly harmed. But, says NCTA, Open Internet rules flatly prohibit ISPs from blocking access to lawful content, so cable operators are barred from using a similar negotiating tactic.
And the availability of station content over the air does not make blocking any less palatable because the content is not the same. "While some broadcasters’ online websites may enable viewing of the same live programming simultaneously being transmitted over the air, what they predominantly offer is on demand access to a library of programs and clips previously shown on the stations by the broadcasters and by their network owners," NCTA told the FCC.
The FCC had asked how broadcasters limiting access was different from print outlets that limit online access to paid subscribers. NCTA said that nobody disputed that online content providers have a general right to limit access to paid customers. But the difference is that in this case, broadcasters only block sporadically as a negotiating tactic and only subs affiliated with the MVPD on the other side of the impasse.