The National Association of Broadcasters (NAB) filed extensive comments and reply comments in response to a Federal Communications Commission (FCC) proposed rulemaking recently that reiterates a message they have been emphasizing for years – the system for retransmission consent negotiations works very well and need not change. NAB stated in its comments that it believes, "substantial changes to the existing retransmission consent rules are not warranted. We agree with the FCC's long-held position that it has limited authority to involve itself in retransmission consent negotiations, consistent with congressional intent to create a retransmission marketplace in which the government would not dictate the outcome of these private negotiations. And, we submit that, overall, the FCC's current good faith negotiation rules are accomplishing their goals."

The FCC has proposed changing the retransmission consent rules by adding new good faith negotiation requirements and per se violations, a new notice requirement for MVPDs, and doing away with the network nonduplication and syndicated exclusivity rules.

NAB pointed to several flaws it found in the proposed rulemaking, arguing that the current good faith requirements work to the benefit of both parties and, most importantly, the viewers. Specifically, NAB reasoned that requiring broadcasters to make rates and negotiation terms public would limit broadcasters' ability to negotiate for fair compensation. Additionally, NAB maintained that prohibiting joint negotiations would create disparate bargaining positions between broadcasters and MVPDs. NAB also argued that no evidence exists for eliminating the syndicated exclusivity or network non-duplication rules.

MVPDs and their supporters have come out in favor of a majority of the FCC's proposed changes. MVPDs agree that good faith standards should be modified, and a host of new "per se" violations should be added to the FCC's list. For example, MVPDs contend it should be a per se violation of good faith negotiating requirements for stations to coordinate negotiations, or to grant another station or major broadcaster authority to negotiate on a station's behalf. MVPDs also contend that the Commission has authority to, and should, force arbitration in the event of a negotiating impasse and require interim carriage in the event of an impasse. However, MVPDs believe that enhanced notice requirements for MVPDs would harm consumers and MVPDs alike, and therefore no changes should be made to the notice requirements.

In contrast, NAB agreed with the FCC that the agency does not have authority to require mandatory arbitration or interim carriage in the case of a retransmission consent negotiation that does not end in agreement. Additionally, NAB supported the FCC's proposal to enhance MVPD notice requirements because increased transparency will benefit consumers.

You can read NAB's initial comments here, and reply comments here.