FCC Media Bureau chief Bill Lake: Time to end 'outdated' exclusivity rules

Five weeks after FCC Chairman Tom Wheeler proposed ending so-called broadcast exclusivity rules, Bill Lake chief of the agency's Media Bureau, posted emphatic support for that idea on the FCC's blog.

"There was a time and a place for the commission's exclusivity rules," Lake said. "That time has passed. It is now time for the commission to step aside and let programming negotiators in the private marketplace do their jobs."

Against strident opposition from broadcasters, the FCC is seriously considering the removal of laws that restrict pay-TV operators from pulling in feeds from distant network affiliates. The laws currently restrict the bargaining position for operators when they are negotiating broadcast retransmission licensing with local stations.

If retransmission talks between an operator and a broadcaster break down, and a network affiliate blacks out its signal, the current laws restrict the operator from turning to an out-of-market broadcaster to replace that network on its program guide. 

Lake argues that removing the regulation will have no practical impact, since operators still have to negotiate retransmission consent with out-of-market broadcasters in order to obtain their signals. Further, most retransmission agreements have their own exclusivity restrictions, he said.

"In practice, network affiliation and syndication agreements typically prohibit broadcast stations from granting MVPDs retransmission consent for out-of-market carriage of their signals," Lake said in his post. "Networks, syndicators, and broadcast stations that choose to create exclusive distribution rights may effectively safeguard those rights through privately negotiated affiliation and syndication agreements. They will continue to have this right in the absence of our exclusivity rules. It is thus wrong to suggest that, in the absence of the exclusivity rules, the compulsory copyright licenses would allow MVPDs 'to abrogate exclusive licenses negotiated by broadcasters in the marketplace.'"

The National Association of Broadcasters, the top lobbying group for the broadcast industry, has deployed a full-court press on regulators in recent weeks in an attempt to prevent the FCC from removing the broadcast exclusivity rules. In early September, the group said that "more than 60 broadcasters and broadcast representatives representing 22 states participated in 25 meetings with FCC commissioners, 8th floor legal advisors and Media Bureau staff to discuss Chairman Wheeler's proposal to eliminate exclusivity rules applying to broadcast programming."

The NAB has also filed no less than five ex parte missives to the FCC on the matter. 

For more:
- read this FCC blog post

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