Broadcasters Use Array of Bad-Faith Negotiating Tactics, ITTA Says, Urging FCC Clampdown
Broadcasters that don't make a contract proposal at least 90 days before expiration of an existing one; prevent a multichannel video programming distributor from divulging rates and terms of a contract proposal to the FCC or other government entity in…
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connection with a legal or administrative hearing; or discriminate in price among MVPDs in a particular market without demonstrating legitimate economic benefit reasons to do so should be considered to be failing to negotiate in good faith, the Independent Telephone & Telecommunications Alliance said in an ex parte filing posted Monday in docket 10-71. With the FCC expected to commence a rulemaking on the circumstances test for good faith negotiations, ITTA representatives including President Genny Morelli met with Media Bureau staff Wednesday to discuss retransmission consent negotiation issues. Broadcasters have a variety of negotiating tools at their disposal, including blocking access to online content, ceding the right to negotiate to third parties, and program tying -- all of which should be considered violations of the duty to negotiate in good faith, ITTA said. If the FCC doesn't go so far as to prohibit program tying, it should look at tier placement and penetration requirements as indications of bad faith, ITTA said. Small and new-entrant MVPDs are particularly targeted by such broadcaster tactics as the manipulation of an initial contract offer to "a last-minute, 'take-it-or-leave-it' proposal"; nondisclosure provisions that block legal or regulatory remedies; and discriminatory pricing, ITTA said. "Without non-discriminatory access to programming content under reasonable terms and conditions, smaller and new entrant MVPDs face a competitive disadvantage that impedes their ability to compete and/or deters them from entering new video markets altogether."