Media Bureau Monitoring Hearst/TWC Retrans Blackout

Instead, representatives of the broadcaster and the cable operator are updating bureau staff about the dispute, as also has occurred in other blackouts, industry officials said. They said staff so far haven’t encouraged the sides to settle. Neither Hearst nor Time Warner Cable have filed a complaint to the commission alleging either side didn’t follow good-faith bargaining rules, nor indicated they will, the officials said. Spokespeople for the bureau, commission and Hearst had no comment for this story. Talks between the broadcaster and operator are “ongoing,” a Time Warner Cable spokeswoman said Thursday afternoon.

The FCC under Genachowski hasn’t generally encouraged sides to settle retrans disputes, and instead gets updates from both parties, broadcast and cable industry lawyers who've been in blackouts noted. In instances where the parties are encouraged to settle, pressure isn’t usually felt by participants to be brought to bear on either side, the lawyers said. “In my experience I can’t recall them on their own initiative stepping into a retransmission consent fight and trying to referee an outcome,” cable attorney Bruce Beckner of Garvey Schubert said of the FCC’s eighth floor. “I can’t remember a case where the commission reached out to parties and said ’this is what ought to happen,'” he said.

The bureau’s role “historically” in broadcaster/pay-TV blackouts is akin to a “forcing function to get the parties together to communicate and stay in touch,” said broadcast lawyer Rebecca Rini of Rini Coran. “That’s the most important part at” such a juncture, she said. There’s not much the commission can do during a blackout, “especially in the absence of a complaint” alleging a lack of good-faith contract renewal negotiations, Rini said. One outlier involved Mediacom and Sinclair Broadcast Group, where some at the commission and in the cable industry felt the agency under former Chairman Kevin Martin encouraged the cable operator to settle.

Left out of the ongoing blackout is WISN(ABC) Milwaukee, which Hearst said unlike the other 15 stations in another dozen markets has an interim retrans extension with TWC. The broadcaster said Bright House Networks subscribers can’t watch on cable the signals of WESH(NBC) and WKCF(CW) both in Orlando, Fla., because Time Warner Cable negotiates carriage for that operator. Other stations in Time Warner Cable markets (CD July 11 p18) include KITV(ABC) Honolulu and WLKY(CBS) in Louisville, Ky., where the operator recently acquired Insight Communications, TWC’s website said (http://xrl.us/bm93wo). “On July 9, 2012 Hearst Television chose to black out their signals from Time Warner Cable customers rather than continue negotiations, and despite their CEO saying just two weeks earlier that broadcaster blackouts are unfair to consumers.” Hearst’s David Barrett told the House Communications Subcommittee last month that Congress “got it right” with the 1992 Cable Act allowing TV stations to charge subscription-video providers for carriage (CD June 28 p5). Cable operators want retrans changed.

TWC should have taken up Hearst on its offer to carry KITV during a mayoral debate Wednesday night, an NAB spokesman said (http://xrl.us/bngn3q). “We're pleased, however, that KITV is making this important program available to Honolulu’s other local TV stations who have agreed to also broadcast it so it will be available to Time Warner’s subscribers in Honolulu.” A group of pay-TV providers that seeks retrans rule changes thinks broadcasters “don’t seem to be slowing down on blackouts anytime soon.” Hearst used “these same anti-consumer tactics” as Viacom used with DirecTV, the American Television Alliance said of the cable programmer and DBS company’s non-broadcast retrans blackout. (See separate report in this issue.) The alliance, with DirecTV and TWC as members, said “this week has been a perfect example of how outdated regulations that no longer fit today’s industry have to be addressed.”