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No Order Circulating

No FCC Retrans Order Seen Anytime Soon, Despite MVPD Requests

The FCC isn’t poised to finish work on reviewing retransmission consent deals between TV stations and multichannel video programming distributors, agency and industry officials told us. That’s despite continued MVPD requests during a webinar on the deals Thursday for the agency to issue an order on retrans. Panelists from the broadcast and MVPD industries debated the significance of the small number of blackouts this year and last.

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Backers of changing retrans rules so stations can’t pull signals from pay-TV companies said that even if the total number of blackouts is small, consumers are still affected and carriage costs are soaring. Broadcast lawyers said the small numbers of disputes show few are affected, and they can choose instead to watch TV over the air or buy service from another MVPD not in the dispute. Regardless, the commission doesn’t seem poised to act, agency and industry officials said during the webinar organized by the Baller Herbst law firm and in interviews.

FCC Chairman Julius Genachowski doesn’t seem ready to act on retrans, the subject of a rulemaking notice last year, an agency official said. And no order is circulating, the official said. The only aspect of retrans regulations some at the commission and in the Media Bureau seem interested in possibly changing is rules on joint carriage negotiations by separately owned stations in the same market, a TV station lawyer said. The agency could limit such joint negotiating arrangements by issuing an order on retrans or through revising media ownership rules that are the subject of a separate rulemaking, the attorney said. A bureau spokeswoman declined to comment.

Genachowski hasn’t made media issues a top priority in general, panelists said. Some said that makes it hard to predict when the commission will act. “It’s hard to read the tea leaves on this one,” Public Knowledge lawyer John Bergmayer said. “Media issues seem to be on the slow burner” at the FCC “at all times,” he said earlier, “so retransmission consent seems to be just one of these media issues which seems to take absolutely forever."

MVPD representatives including the American Cable Association had hoped an order would have been issued last year, in time for the year-end retrans cycle when many contracts expired, Vice President Ross Lieberman said. “The MVPDs and others that are in favor of that notice of proposed rulemaking would like to see that concluded as soon as possible.” Many of those hoping an order would circulate and be voted on “waited for the order to be issued, perhaps to help guide the retransmission consent cycle” that was just concluded, moderator Jim Baller said. “But the order hasn’t been issued yet.” He represents municipal interests on video and other issues.

"Depending on who you ask, things are either crazy or they are calm” on retrans, said communications lawyer Martin Stern of K&L Gates, who also moderated the webinar. Thousands of ACA member cable subscribers can’t see a broadcaster because of a spat, while about 270,000 DirecTV subscribers in Miami and another 200,000 in Boston can’t see Sunbeam TV stations because of an impasse, and another 80,000 Time Warner Cable customers in Corpus Christi, Texas, are in the same situation, Lieberman estimated. “We can sit here and say it’s not 10 million or 100 million, but it’s big to those families."

Last year bore out the predictions of panelists John Hane of Pillsbury and Antoinette Bush of Skadden Arps that there would be few blackouts, she said. “There were very few disputes.” A major dispute that’s ongoing involves cable programming, with Time Warner Cable subscribers not being able to see MSG in the New York area, said Bush, who represents TV networks. “Ross is wrong -- it was a quiet year,” said Hane, who represents Big Four network affiliates. “Forty cities lost signals last year. I think that is ACA stretching for a figure that is big.” Forty markets is only a portion of the U.S.’s 210 TV markets, Hane noted.

"The FCC will not issue an order this year,” Hane predicted. “It knows that any rules would have a high probability of being overturned” in court, he continued. “With interruptions few and far between, and MVPDs forcing most of them, there’s no reason for the FCC to take that risk.” It’s not clear when the agency will act, said Vice President Cristina Pauze of Time Warner Cable. “We hope the FCC will study the issues and new developments closely in both the retrans and ownership proceedings this year.” Bush thinks it’s “unlikely the FCC will act” in 2012 “given the overwhelming number of agreements that were successfully negotiated last year,” she said. “There is no need for action."

"I don’t see the commission acting this year if they can avoid it, which they can,” said Senior Vice President Richard Waysdorf of Starz. “There’s no clear consensus on what they should do, and anything they do would be a limit on the power of the broadcasters. That is never easy to do, especially in an election year.” Starz is hurt by broadcast networks tying MVPD carriage of stations to cable programming, which the cable programmer can’t do and which means it must wait until network-MVPD deals are worked out until it gets carriage deals, Waysdorf said. Bergmayer noted the difficulty predicting what will happen means “it’s possible the FCC could move forward on the retrans docket.” He said that would “avoid having the media ownership docket become just a proxy retrans fight.”