Retransmission Consent Examined in Heated, Live Webcast Debate Among Broadcast, Cable, Programming, and Consumer Interests

A live webcast last week carried on Internet TV channel Broadband US TV examined all sides of the debate on whether rules governing the grant of retransmission consent by local broadcast stations to cable operators, DBS providers, and other multichannel video programming distributors (MVPDs), should be reformed.

Retransmission consent negotiations have become quite contentious in recent years, at times resulting in the temporary blackout of a local broadcast station in the face of an impasse between the MVPD and broadcaster.

The lively and, at times, raucous debate featured Toni Cook Bush of Skadden, Arps and John Hane of Pillsbury Winthrop Shaw Pittman for broadcasters, Ross Lieberman of the American Cable Association and Cristina Pauze of Time Warner Cable for cable operators, Gigi Sohn of Public Knowledge for consumer interests, and Richard Waysdorf, of Starz Entertainment for independent programmers. The program was moderated by Broadband US TV co-hosts Marty Stern of K&L Gates and Jim Baller of the Baller Herbst Law Group.

Under current law, broadcasters are prohibited from failing to negotiate in good faith for the provision of retransmission consent, and there is significant disagreement between the broadcast industry, MVPDs and others as what constitutes good faith negotiations.

The FCC recently released a notice of proposed rulemaking examining its retransmission consent rules to determine whether certain practices, that have caught the ire of MVPDs, consumer groups, and independent programmers, should be deemed per se failures to negotiate in good faith. There is also some question as to the scope of the Commission’s authority to regulate retransmission consent negotiations, with the broadcast industry advocating a narrow construction of the Commission’s statutory authority, and others urging a more expansive view of the Commission’s authority.

Initial comments on the Retransmission NPRM are due May 27 and Replies are due June 27.