In a latest decision that will somehow make him even less popular with the cable industry, FCC Chairman Tom Wheeler has said that his agency will not add to regulations governing negotiations of broadcast retransmission licensing.
"Based on the staff's careful review of the record, it is clear that more rules in this area are not what we need at this point," Wheeler said in his post published earlier today.
The FCC had been conducting a Congress-mandated review of the so-called "totality of circumstances" test for good-faith negotiations between MVPDs and broadcasters. In numerous ex parte filings, pay-TV operators and their industry lobbying orgs had asserted that such good faith is regularly usurped by station blackouts.
"It is hard to get more inclusive than to review the 'totality of circumstances,'" Wheeler said. "To start picking and choosing, in part, could limit future inquiries. So, today I announce that we will not proceed at this time to adopt additional rules governing good faith negotiations for retransmission consent."
"Now let me be clear; this does not mean the FCC will turn a blind eye to disputes," he added. "Nor does it mean that Congress couldn't expand the scope of the Commission's authority in this space. What this decision does mean is that "totality of circumstances" is pretty broad and ought not to be constrained.
Wheeler said there's no evidence to suggest that the current totality of circumstances test is inadequate.
"Though commenters complained about a variety of negotiating practices, none showed that those practices are the causes of the blackouts that occur," he added. "Further, a number of the practices complained of were said to have been engaged in by a single negotiating party or in a small number of negotiations and do not appear to be gaining currency in the marketplace."
Processing a flurry of regulatory news, the National Cable Telecommunications Association and American Cable Association have yet to release statements on Wheeler's remarks.
The National Association of Broadcasters, however, is unsurprisingly pleased by the development:
"NAB appreciates the significant work undertaken by Chairman Wheeler and the FCC staff to conduct an exhaustive review of the retransmission consent process, and applauds its conclusion that no new rules are needed," NAB said in a statement. "As Chairman Wheeler acknowledges, the vast majority of these negotiations are successfully concluded without incident or impasse. Broadcasters remain fully committed to reaching agreements with pay TV companies in good faith so that consumers can continue to receive our high-quality local content whether over the air or through a pay TV service."
- read Chairman Wheeler's blog post
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Wheeler tips hand at siding with NAB on retrans reform