Broadcasters Press FCC On Exclusivity

Over the course of the last week and a half, more than 60 broadcasters and broadcast representatives from 22 states participated in 25 meetings with FCC commissioners, their legal advisers and Media Bureau staff to discuss Chairman Wheeler’s proposal last month to eliminate network nonduplication and syndicated exclusivity rules applying to broadcast programming.

According to NAB, three points the broadcasters emphasized throughout these meetings were:

• An emphasis on the importance of these rules to localism.

• Concern from small-market broadcasters that exclusivity rules are critical to their survival.

• The difficulty of handling exclusivity through contract and litigation if the FCC were to eliminate the rules because of “privity of contract” issues (meaning the local station would have a tough time suing the right party to stop importation of duplicative programming).

When Wheeler made the proposal to eliminate the rules, he said: “The exclusivity rules prevent cable and satellite operators “from providing subscribers an out-of-market broadcast station, for example, when a retransmission consent dispute results in a local station being dropped from carriage.

“In this item, the commission takes its thumb off the scales and leaves the scope of such exclusivity to be decided by the parties…. In so doing, the commission would take 50-year-old rules off our books that have been rendered unnecessary by today’s marketplace.”

After Wheeler’s announcement, TVNewsCheck Editor Harry A. Jessell wrote: “Broadcasters have long opposed tampering with the rules. By helping to preserve their local exclusivity to network and syndication programming, they say, the rules strengthen their hand in retrans dealings.”

And NAB EVP Dennis Wharton said last month that the elimination of the rules would “threaten the vibrancy of our uniquely free and local broadcast system. It is curious that the FCC keeps relying on the rationale that it is taking such pro pay-TV actions because the rules are decades old, but refuses to even review or remove broadcast ownership rules that were imposed under market circumstances that clearly no longer exist.”