An FCC spokesman signaled late Wednesday that the commission could take some action if the CBS and Time Warner Cable retransmission-consent disconnect isn't resolved soon.
"The commission reminds the parties of their obligation to negotiate in good faith for the benefit of consumers. We are in regular contact with the parties and stand ready to take appropriate action if the dispute continues," said the spokesman. He would not elaborate on what that might mean, but acting FCC commission Mignon Clyburn is on the record as not being partial to negotiating tactics that delay blackout resolution.
"Refusing to negotiate, using delay tactics, and crying wolf via inflammatory notices are actions that should never take place," commissioner Clyburn said in a 2011 statement following the FCC's release of a Notice of Proposed Rulemaking on possible retrans reforms, including better clarifying what constitutes good faith negotiations, which the FCC is empowered to enforce. "When a TV screen goes dark, people blame not only the companies, but the government as well," she said at the time.
But she also reads the FCC's authority as limited, as did her predecessor. "[T]the law here is clear: The commission holds limited authority via limited methods."
Former House Communications Subcommittee chairman and now Senate Commerce Committee member Ed Markey (D-Mass.), wrote Clyburn on Tuesday (Aug. 6) to ask that the FCC step in to get the parties to the table. "I request that the commission take action to bring the parties together so these negotiations can be concluded in an equitable and expeditious manner," he wrote.
Back in 2010, then Rep. Markey wrote an extremely similar letter to then FCC chairman Julius Genachowski about a high-profile Fox/Cablevision blackout, also involving New York.
In that case, Genachowski did step in to the extent that Media Bureau Chief Bill Lake asked both sides to explain how their negotiations square with the law that requires those negotiations to be "in good faith." The FCC under Genachowski interpreted its powers as limited to insuring those good faith negotiations.
Lake also asked each side to provide any evidence against the other side if they had it. Both sides responded.
No word yet on whether Lake, still the Bureau Chief, will repeat his request in this context.