The broadcasters involved in the FCC’s first forfeiture order over failure to negotiate retransmission consent in good faith aren’t giving up the fight. The commission voted last month to deny an appeal of the Media Bureau’s determination that a number of station groups failed to negotiate retrans consent in good faith with AT&T, proposing a forfeiture of $512,000 against each station. While the broadcasters argue the FCC should vacate the decision and dismiss the proceeding, at the very least, they want the commission to reduce the amount of proposed forfeitures to $25,000 per station. That would take the proposed penalty from more than $9 million for the 18 stations involved down to a collective $450,000.
By complicating negotiations, the good faith rules made the failure of retrans negotiations more likely without any apparent upside. A lot of parties wasted a lot of time prosecuting good faith petitions at the FCC (and much more time was wasted posturing for good faith complaints that were never filed), but only one ever led to a finding of bad faith.
In comments to the FCC, the trade group says that adopting some or all of pay TV’s retrans “good faith” proposals would simply create greater financial and competitive advantage for an already highly consolidated pay TV industry. Consumers would stand to gain nothing from a weakened retransmission consent regime, and could even face more abuse from their pay TV providers.
To hold otherwise, it tells the FCC, would risk broadcasters refusing to put content online in the first place.
The cable group tells the FCC that blocking viewers’ access to online programming, “when used by broadcasters as a tactic in retransmission consent negotiations, should be deemed to violate the duty to negotiate in good faith.”
“Given the history of the pay TV industry and its consumer pricing and customer service practices, the commission cannot rationally conclude that consumers will benefit from government policies designed to increase substantially the marketplace power of pay TV and broadband gatekeepers,” the broadcast trade group says. The proposed changes will not reduce station blackouts, “in fact, they may well increase those impasses,” it adds.
Late Friday, the FCC denied the request of several broadcasters to extend the time to comment on the FCC proceeding looking at the requirement of “good faith” in retransmission consent negotiations, though it did extend the time for reply comments by two weeks. The FCC is reviewing the good faith requirement, to determine if it should adopt new standards, either through the adoption of practices which per se violate the requirement, or by looking at practices which, when assessing the totality of the circumstances, do not constitute good faith.