Lawmakers look at changing retransmission rules through the side door

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Interesting move by Senate Commerce Committee chairman Jay Rockefeller (D-WV) to try to bring the debate over the rules for retransmission consent agreements to a head. On Wednesday, Rockefeller and the committee’s ranking Republican, Sen. John Thune (SD), sent a letter to broadcasters, cable and satellite providers and a host of think tanks and public interest groups asking for input on laundry list of proposals that have been floated over the years for reforming the current retransmision content regime.

The letter was also signed by Communications, Technology and Internet Subcommittee Chairman Mark Pryor (D-AR) and Ranking Member Roger Wicker(R-MS).

The slick part is that the letter raises the retransmission reform proposals in the context of reauthorization of the Satellite Television Extension and Localism Act (STELA), which is set to expire at the end of this year. STELA reauthorization is essentially a must-pass telecom bill because it creates the legal framework by which satellite TV services are able to offer local broadcast stations to their subscribers on a market-by-market basis. Broadcasters, satellite providers and cable operators all have a stake in its reauthorization, albeit different stakes. While all can be expected to lobby to include or exclude their pet provisions, none is likely to try to block the law altogether.

With its letter, the committee is essentially proposing to attach retrans reform to a bill all the affected parties want to see passed.

The letter does raise some possible tweaks to STELA itself, including clarifying the meaning of “good faith” negotiations between satellite providers and broadcasters over retransmission consent, the bulk of it is focused on a reform proponent’s wish list of proposals for overhauling the entire retrans system and helping over-the-top video services compete against traditional pay-TV providers.

The full list:

(1) Some have suggested that Congress adopt structural changes to the retransmission consent system established under Section 325 of the Communications Act (Act).  Others have indicated that the retransmission consent system is working as Congress intended when it was developed as part of the Cable Television Consumer Protection and Competition Act of 1992.

(A) Should Congress adopt reforms to retransmission consent?  If so, what specific  reforms could best protect consumers?  If not, why not?

(B) Please comment on the following possible reforms that have been suggested by  various parties:

(i) Providing the FCC authority to order interim carriage of a broadcast signal  or particular programming carried on such signal (and the circumstances under  which that might occur).

(ii) Prohibiting joint retransmission consent negotiations for multiple TV  stations at the same time.

(iii) Mandating refunds for consumers in the case of a programming blackout  (and apportioning the ultimate responsibility for the cost of such refunds).

(iv) Prohibiting a broadcast television station from blocking access to its  online content, that is otherwise freely available to other Internet users, for  an MVPD’s subscribers while it is engaged in a retransmission consent negotiation with that MVPD.

(v) Eliminating the “sweeps” exception that prevents MVPDs from removing  broadcast TV channels during a sweeps period, or alternatively extending that  exception to prevent broadcasters from withholding their signals or certain  programming carried on such signals under certain circumstances.

(vi) Prohibiting retransmission consent agreements that are conditioned on the  carriage by an MVPD of non-broadcast programming or non-broadcast  channels of programming affiliated with the broadcast license holder.

(2) Should Congress maintain the rule that cable subscribers must buy the broadcast channels in their local market as part of any cable package?  If the rule is eliminated, should an exception be made for non-commercial stations?

(3) Should Congress maintain the rule that cable systems include retransmission consent stations on their basic service tiers?

(4) Section 623 of the Act allows rate regulation of cable systems unless the FCC makes an affirmative finding of “effective competition.”  Should Congress maintain, modify, or eliminate these provisions?

(5) Should Congress repeal the set-top box integration ban?  If Congress repeals the integration ban, should Congress take other steps to ensure competition in the set-top box marketplace both today and in the future?

(6) Should Congress limit the use of shared services agreements (SSAs) and joint sales agreements (JSAs) by broadcast television ownership groups, and if so, under what circumstances?

(7) Should Congress act in response to concerns that the increasing cost of video programming is the main cause behind the consistent rise in pay TV rates and that programming contracts contribute to the lack of consumer choice over programming packages?  If so, what actions can it take?

(8) With consumers increasingly watching video content online, should Congress extend existing competitive protections for the traditional television marketplace to the online video marketplace?  If so, what types of protections?

(9) The Consumer Choice in Online Video Act, S. 1680, is one approach to fostering a consumer-centric online video marketplace.  Are there elements of that bill that should be considered in conjunction with the STELA reauthorization?

(10) Would additional competition for broadband and consumer video services be facilitated by extending current pole attachment rights to broadband service providers that are not also traditional telecommunications or cable providers?

(11) Would additional competition for broadband and consumer video services be facilitated by extending a broadcaster’s carriage rights for a period of time if they relinquish their spectrum license as part of the FCC’s upcoming incentive auction?

(12) Are there other video policy issues that the Congress should take up as part of its discussions about the STELA reauthorization?

The letter asks for responses to be sent to the committee by March 17.