Broadcasters Levy Retrans Complaint Against DirecTV
At loggerheads with DirecTV in retransmission consent negotiations, seven related broadcasters want the FCC to begin pushing more reciprocal disclosures of rates and terms. “An unbridgeable chasm has opened between [the broadcasters] and DirecTV on the issue of the competitive market value of the stations’ signals,” said the complaint posted Friday in docket 12-1.
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DirecTV's 2011 contract with the seven was to expire in February, though it was extended. Negotiations have been going on since 2014. And while the seven -- Northwest Broadcasting, Broadcasting Licenses Ltd., Mountain Licenses, Stainless Broadcasting, Eagle Creek Broadcasting of Laredo, Bristlecone Broadcasting and Blackhawk Broadcasting -- have supplied DirecTV with generalized data from numerous other retrans agreements reached this year with other multichannel video programming distributors, DirecTV "responded with the bald assertion that it has its own facts [that] establish a sharply divergent market value for the group’s signals,” the seven said. “But DirecTV has repeatedly and resolutely refused … multiple requests that it provide the group with any underlying data … relevant to its substantially disparate position on price.” In a statement, the satellite company said it "continues to work in good faith with Northwest Broadcasting and looks forward to reaching an agreement."
The stations seek an FCC finding that DirecTV failed to negotiate the retrans agreement in good faith, and an order making the satellite company provide data that backs up its price negotiation position. The complaint involves language in the 1999 Satellite Home Viewer Improvement Act and subsequent FCC language that indicated that if data about competitive markets isn't made available in good-faith negotiations, the agency is open to imposing discovery "to develop a more complete record and resolve complaints."
The DirecTV complaint is a chance for the FCC to indicate it will push reciprocal disclosure through commission-backed discovery going forward, especially as a means "to fulfill its oft-articulated goal of minimizing harms to innocent consumers from signal blackouts," the complaint said. Such an idea could get a warm welcome in some corners. That kind of comparable information "is something we always ask for [in negotiations], and they'll say 'absolutely not.' It'd certainly help the FCC determine if negotiations are in good faith," said Tom Larsen, Mediacom vice president-legal affairs. "We've been in favor of more transparency in the pricing.
“We will not fall victim to your silly and obvious tactics to audit our retrans deals so you can see them all,” DirecTV communicated at one point, according to the complaint. “We did not ask you to send us your supposed rates, and your unilateral decision to do so doesn’t give you the right to see our other deals.” The satellite company's stance "is reflective of the substantial marketplace size advantage it enjoys," the broadcasters said. "DirecTV can afford a prolonged dispute -- including signal blackouts -- much more easily." With AT&T's planned acquisition of DirecTV, "this size imbalance only threatens to get worse," the complaint said.
The scales actually are tipped in broadcasters' favor, said the DirecTV-supported American Television Alliance in a statement. "Broadcasters continue to abuse consumers with threats to pull stations off the air. Broadcasters are solely responsible for each blackout," the advocacy group said, saying such blackouts frequently have been seen with Northwest Broadcasting, including one lasting 37 days in 2011, and two in 2012, including one that ran for 74 days, one of the longest in history.