In an ex parte response to broadcaster comments on the issue, the National Cable & Telecommunications Association pointed out it has urged the FCC to prevent broadcasters form using local marketing agreements or other joint arrangements to negotiate retrans deals.
"Antitrust law recognizes that such coordination, collusive negotiation, and fixing of prices is so devoid of any countervailing benefits to consumers that it is generally per se unlawful," NCTA said in response to National Association of Broadcasters filings on the Federal Communications Commission's media-ownership rule review and its open retransmission-consent docket.
The cable trade group said that none of broadcasters' arguments — that the agreements don't make fees "dramatically higher," that those fees are only a small portion of cable costs, that non-overlapping cable operator joint retrans negotiations is comparable to same-market coordinated negotiations — hold up under scrutiny.
An to put an exclamation point on its case, NCTA invoked the Gannett/Belo deal. NCTA member Time Warner Cable along with the American Cable Association and DirceTV, have petitioned the FCC to deny the station transfers that implicated those joint agreements and potential coordinated retrans negotiations.
The proposed transfer of licenses from Belo Corp. to an affiliate of Gannett Co. would result, in at least one market, in the common ownership of two top-four rated stations– an outcome barred by the Commission’s rules," said NCTA. "Rather than avoiding such a violation of the duopoly rules by simply selling one of the stations in each of those markets to an unaffiliated buyer, the parties have announced that they will spin off one or more of the stations but that they will be operated jointly pursuant to contractual agreements. The pendency of this transaction accentuates the importance of the Commission moving expeditiously to make clear that the joint negotiation for retransmission consent by multiple broadcast stations in a particular market is impermissible."