Nexstar has told the FCC that Time Warner Cable is impermissibly using Nexstar's TV stations as pawns in its retrans dispute with Hearst TV. The MSO says it is doing nothing wrong.
In an emergency petition to the FCC for an injunction, Nexstar has asked the commission tell Time Warner Cable to stop importing three of its stations into markets hundreds of miles away as substitutes for Hearst TV stations it is no longer carrying in those markets due to an ongoing retrans impasse.
It also asked for sanctions for Time Warner Cable's "repeated and willful violation."
Nexstar says its retrans agreement with TWC covers the cable operators' carriage of WBRE in Wilkes Barre/Scranton, Pa.; WTWO Terre Haute, Ind.; and WROC in Rochester, N.Y., and points out that back in 2010, it sought an injunction against Nexstar for importing WBRE into the Utica, N.Y., DMA during another retrans dispute without providing the FCC-required notice that it was deleting and adding stations, a petition, it points out, has yet to be acted on.
Now, says Nexstar, TWC is again importing WBRE, as well as those of WROC and WTWO, to far-flung markets -- Burlington-Plattsburgh, Cincinnati, Winston-Salem, and Orlando in the case of WBRE and Louisville, Ky., relative o WROC -- as "replacement stations" for Hearst TV station. The station group says TWC is proceeding without providing the requisite 30-day notice to the stations or required notice to subscribers or franchising authorities.
Had it been given notice, Nexstar said could have taken court action to prevent its stations from being used as "pawns."
One of the standards for granting an injunction is that the party could suffer irreparable harm without it. As evidence, Nexstar points out that TWC is importing WBRE and its Eyewitness News-branded local news into Orlando, where WFTV there already has the Eyewitness News moniker and has asked the station to desist, which it can't do without removing the brand in its home market.
"Time Warner Cable's retransmission of Nexstar's signals is fully authorized by the retransmission-consent agreement between the parties and allows us to seamlessly continue carriage of the network programming that Hearst Broadcasting pulled from our systems in an attempt to force consumers to pay more for it," said Time Warner Cable in a statement Tuesday. "This carriage assures our customers of continued access to the upcoming Olympics coverage and other important programming. We are disappointed that Nexstar is working to assist and expand Hearst's leverage against us and our customers by bringing this suit. We are confident that we are operating within our rights and the law and will continue to fight for our customers against this aggressive and coercive broadcaster behavior."
Nexstar points out that in responding to the 2010 complaint, TWC had also argued that it was preventing consumer harm from the loss of popular network programming. But Nexstar counters that "Time Warner's desire to avoid annoying its subscribers does not excuse its failure to comply with the law."
The FCC's exclusivity rules do not ensure signal exclusivity. Instead, they put the force of FCC rules behind contract exclusivity terms so long as the requisite notice is given to affected parties, including subs, about potential signal additions or subtractions related to those contracts.
For example, TV stations have to provide notice to cable operators before they drop a signal that their network contracts provide exclusivity against the importation of duplicating network affiliates. The cable company then has the right to ask for a copy of the affiliation agreement language and has 60 days to comply, including giving their subs at least 60-days' notice. So, if that notice does not come at least 60 days before a signal is pulled, a cable operator could keep the signal on the air and not run afoul of FCC rules.
If the station has provided that notice sufficiently in advance, and a cable operator keeps the signal on anyway or repositions a station without sufficient notice, it is in violation of FCC rules.
For example, the FCC just two weeks ago fined a cable operator $30,000 for impermissibly continuing to carry TV station signals after the contract had expired during a retrans fight.