WASHINGTON, D.C. — The National Association of Broadcasters issued a statement today following an announcement that the Federal Communications Commission will be issuing a Notice of Proposed Rulemaking regarding retransmission consent. Retransmission consent is the market-based process by which a pay-TV distributor and a broadcast station negotiate carriage rights.

Commenting, NAB President and CEO Gordon Smith said:

“NAB strongly endorses educating consumers with the multiple options available to them in the exceedingly rare instance when a retransmission consent dispute arises, including the antenna TV option. In the final analysis, injecting Washington into private business negotiations that have a 99 percent success rate only serves to embolden pay-TV companies. If the pay-TV giants succeed, there will be further migration of premiere sporting events like the Super Bowl away from free TV, and a reduction in financial resources that sustains quality foreign language programming, local news and entertainment to a growing audience of more than 30 million Americans who rely exclusively on over-the-air television.”

About NAB
The National Association of Broadcasters is the premier advocacy association for America’s broadcasters. NAB advances radio and television interests in legislative, regulatory and public affairs. Through advocacy, education and innovation, NAB enables broadcasters to best serve their communities, strengthen their businesses and seize new opportunities in the digital age. Learn more at www.nab.org.

Yesterday, the New Hampshire Association of Broadcasters, along with 45 other State Broadcasters Associations, the National Association of Broadcasters, National Cable and Telecommunications Association, Society of Broadcast Engineers, American Cable Association, Association for Maximum Service Television, National Public Radio, Association of Public Television Stations and Public Broadcasting Service, urged the FCC to extend the current March 29, 2011 CAP-compliance deadline to at least September 30, 2011 or later, as well as to consider holding the deadline in abeyance until the FCC has completed its own CAP-related equipment certification process and has resolved its anticipated rulemaking proceeding concerning modifications to Part 11 of its EAS rules and regulations.

We pointed out that it would be premature at best, and potentially very wasteful at worst, for some 25,000 to 30,000 EAS participants to be required to purchase, install and test new or modified CAP-related equipment in circumstances where (i) the IPAWS list of CAP tested and certified EAS equipment has yet to be released, (ii) the FCC may conduct its own certification process which could necessite further changes to equipment which FEMA has already approved, and (iii) the FCC may, as a result of an expected rulemaking, change its EAS regulations in ways that impact the future suitability of CAP-related equipment. We also urged the Commission to take into consideration the extra time needed for EAS participants to coordinate with their state and local representatives to insure that the conversion of government owned EAS equipment would be compatible with CAP-related equipment that radio and television stations, and others, may employ. Given the importance of getting “CAP” right the first time, we stressed that flexibility should be the watchword in this context.

National Association of Broadcasters response to Senator Kerry’s legislation draft:

WASHINGTON, D.C. — The National Association of Broadcasters issued a statement today regarding the fair, market-based carriage negotiation process known as retransmission consent.

Commenting, NAB Executive Vice President Dennis Wharton said:

“As history has shown, 99.9 percent of these deals are reached without disruption. We don’t have a broken system; we have a broken pay-TV company that likes to play Washington games. Broadcasters and pay-TV operators share a mutual interest in reaching a fair, market-oriented carriage deal. Only when one party shifts their focus, pleading to government instead of negotiating fairly, does that mutual desire dissolve.”

Retransmission consent is the fair, market-based negotiation process by which pay-TV operators and broadcasters reach an agreement for the carriage of a TV station’s signal. For more information on the market-based negotiation process, visit NAB’s Policy Blog.

Senator John Kerry (D-MA) Press Release from October 19th:

WASHINGTON, D.C. – Senator John Kerry (D-Mass.), Chairman of the Commerce Subcommittee on Communications, Technology, and the Internet, today sent a letter to Federal Communications Commission (FCC) Chairman Julius Genachowski with draft legislation to protect consumers during disputes between broadcasters and cable providers that sometimes lead to televisions going dark and often threaten to disrupt service.
For years, Kerry has urged both broadcasters and cable providers to keep TV signals up during their contract negotiations, but in recent years, TV blackouts or threats of blackouts during major events such as the college bowl games and the Oscars have too often been the result of these retransmission disputes.
“It’s not our job to take sides, but it is our responsibility to help find a better way forward,” said Sen. Kerry.  “The goal of this legislation is to offer a path towards resolution that reforms a broken system and protects the consumers who get caught in the middle. I look forward to feedback from the FCC and collaboration and input from all stakeholders. This system today isn’t working for anyone.”
Kerry’s legislation, which he intends to introduce in the upcoming “lame duck” session, would prevent television signals from being pulled until both broadcasters and cable companies have gone through a process with the FCC to ensure good faith negotiations and consider arbitration as an option.
The full text of the letter is below:
October 19, 2010
The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12^th Street, SW
Washington, D.C. 20004

Dear Chairman Genachowski:

As you know, News Corp. (FOX) and Cablevision failed to reach an agreement on Friday for the retransmission of WNYW (NY channel 5), WWOR (NJ channel 9) and WTXF (Philadelphia channel 29).  As a result, approximately 3 million Cablevision subscribers in New Jersey, New York and Connecticut were left without access to these broadcast channels, including the widely watched New York Giants game this weekend.  As the New York Times recently reported, these sorts of confrontations are now “a regular event;” indeed, Bloomberg News recently reported that “TV blackouts in the U.S. have reached the highest level in a decade and may climb as pay-TV operators fight higher fees sought by content producers.”

Rather than take sides in a conflict of corporate interests, we can all agree that this system works least of all for consumers, the primary interest we represent in matters of public policy-making.  I hope you will agree that the current process – which forces all sides and particularly consumers into lousy choices – is broken and in need of reform.  Currently, either party, sufficiently strong willed, can play a game of negotiating chicken with the consumer caught in the middle.  It incentivizes conflict over negotiation.

The voices of angry consumers in this weekend’s news coverage speak volumes. Many football fans had to leave home, denied the service they faithfully pay for, and even bring their children to bars to watch the game. As one person, Marilyn Odell, told the New York Times, shouting to be heard above the crowd, “We’re too old to be in this place.”  A separate Associated Press story detailed one of the owners of a bar that depends on its Cablevision subscription complaining, “This is ridiculous!…I’m relying on people to come in who are Giants fans – and they’re walking out, even though I pay for the football package.”  He went on to say that “regular, everyday people get caught in the middle.”

There are important equities and business interests at stake in these negotiations, and in this most recent case, both sides believe they’ve negotiated in good faith. It’s not our job to take sides – but it is clearly our responsibility to ask whether there’s a better way forward as these kinds of situations rise in frequency. In addition to this most recent dispute, just last March, Cablevision and Disney/WABC-TV failed to reach an agreement and the WABC-TV signal was pulled from Cablevision.  While that signal was eventually restored, it was only after Cablevision customers were without WABC-TV for approximately 20 hours, including the first 15 minutes of the Academy Awards (Oscars) broadcast.  And upcoming retransmission consent negotiations between FOX and the DISH Network which will include thousands of households in Boston and millions nationwide, and in December between Mediacom and Sinclair Broadcasting, could put even more Americans at risk of losing television programming that they have come to expect and rely on for their local news and entertainment.

This spring, you testified before the Senate Commerce Committee that the retransmission consent system was under review and had been since the previous New Year.  Further, a petition that seeks to modify the FCC’s rules for retransmission consent negotiations has been pending before the FCC since March 2010.  The FCC has had sufficient time to consider the comments that have been filed on that petition and begin the process to revise its rules. But in the absence of FCC action, I feel a responsibility to begin to consider the smartest, least intrusive actions to reform the law.

A discussion draft of the legislative language is attached.  The process we are trying to effect is two party negotiations that have a big impact on an unrepresented third party; consumers.  The goal is to offer a path to potential resolution of differences and protect consumers.  It would stave off the termination of carriage on expiration of an agreement and allow signals to continue transmitting until the FCC evaluates the behavior of the parties and recommends or does not recommend binding arbitration during which carriage would continue. At the end of the day, the broadcaster would retain the right to pull the signal when there is a good faith impasse on terms, but it would not be able to do so without much greater transparency in process and a more systemic effort at reaching agreement without consumers getting caught in the middle.

In short, in any broadcaster-distributor negotiation, there are four basic possible impasse scenarios, for which I am considering a new process of resolution as follows.  Once both parties agree that they have reached an impasse, they both submit their last best offer for FCC evaluation and:

·         Scenario 1 – The FCC finds that the broadcaster is negotiating in good faith and making an offer consistent with market conditions but the distributor is not.  In this case, the distributor shall agree to the broadcaster’s last best offer or terminate carriage and the FCC may fine the distributor for negotiating in bad faith.  In lieu of termination of the signal, the broadcaster can withdraw the last best offer and ask the Commission to require binding arbitration.

·         Scenario 2 – The FCC finds that the broadcaster is not negotiating in good faith or making an offer consistent with market conditions and the distributor is negotiating in good faith and making an offer consistent with market conditions, then the FCC can
require binding arbitration.  The penalty for the broadcaster is forced participation in binding arbitration.

·         Scenario 3 – This will be the most likely scenario in most cases. The FCC finds that both parties have negotiated in good faith but reached a true impasse based on an honest disagreement on the value of the signal.  In this case, the FCC may request them to submit to binding arbitration.  If one party or the other refuses to engage in binding arbitration, then the FCC will provide both parties with a model notice by which to inform consumers of the potential loss of service as well as the difference in offers on the table so that consumers can judge for themselves who was making the fairest offer.  This adds a more consumer friendly and transparent way to end transmission of services if necessary and creates an attractive option for arbitration for both parties.

·         Scenario 4 – The FCC finds that neither party is negotiating in good faith, then it can require binding arbitration and fine both parties.

I look forward to working with you on a solution to this problem.  If you have an alternative solution or believe you can make the process work for consumers using your regulatory authority, please let me know.

Sincerely,

John F. Kerry

On September 3, 2010, the New Hampshire Association of Broadcasters joined with 45 other State Broadcasters Associations in strong support of the free, local, over-the-air television broadcast industry by filing Reply Comments in the FCC’s Satellite Television Extension and Localism Act (“STELA”) proceeding.  The Reply Comments focus on efforts by the DISH Network and DirecTV to persuade the FCC that STELA requires the FCC to permit increased importation of distant network signals into local markets.

The satellite providers are permitted to import distant network signals to “unserved households” — households that are unable to receive their local network affiliate’s signal over-the-air.  Under prior statutes, a household was considered unserved only if it could not receive its local network affiliate through an outdoor rooftop antenna.  Because of a change in the wording of STELA compared to prior statutes, the satellite providers are seeking to persuade the FCC that a household should be considered unserved (and therefore eligible to receive network stations from other markets) if it is unable to receive its local network station using a simple indoor antenna.  Such a change would greatly increase the number of households deemed “unserved”, and therefore greatly increase the number of satellite subscribers receiving distant network signals in your markets.  The satellite providers’ incentives for urging this change are the opportunity to sell more distant network signals to their subscribers, and to undercut local network stations in retransmission negotiations by giving the satellite provider an alternate source of network programming for its local subscribers.

The Reply Comments support the joint comments filed by NAB and others opposing this change, and argue that STELA does not require the FCC to use indoor antennas as the new reception standard.  The State Associations point out that local stations, unlike distant out-of-market stations, provide viewers with local news, emergency information, sports, weather, public safety, and public service programming.  The Reply Comments also reiterate the importance of localism and the need to prevent satellite providers from undercutting the viability of local network stations, noting that Congress specifically designed STELA and its predecessors to restrict, rather than enhance, the ability of satellite providers to import duplicative network programming from out-of-market stations.  The State Associations therefore urged the FCC in the Reply Comments to maintain localism by continuing to rely on the Individual Location Longley Rice model and its use of outdoor rooftop antennas as the reception standard of reference for distant network signal importation.

From Press Release

Yesterday, July 29th, U.S. Representatives Rick Boucher (D-VA), Chairman of the Subcommittee on Communications, Technology, and the Internet, and Cliff Stearns (R-FL), Ranking Member of the Subcommittee, introduced the Voluntary Incentive Auctions Act of 2010. The legislation will help ensure that new spectrum can be made available for commercial wireless services by permitting the Federal Communications Commission (FCC) to conduct incentive-based spectrum auctions in which a spectrum holder voluntarily relinquishes its spectrum in return for a portion of the auction proceeds.

“Each year, millions of users graduate from basic cell phones to smart phones that employ a range of data services requiring far greater bandwidth than traditional cell phones. At the same time, smart phone applications are becoming more elaborate. The combination is placing unprecedented demands on our limited wireless spectrum availability. To meet these growing demands, the FCC’s National Broadband Plan calls for making 500 MHz of spectrum newly available for broadband use within the next 10 years. That is a worthy goal, and one that our legislation will assist in achieving,” Boucher said.

“We are facing a looming spectrum crisis. It’s very clear that the U.S. will need additional spectrum to meet the growing demand for wireless broadband.  Wireless providers have used spectrum to provide U.S. consumers with innovative voice and data services. The number of mobile broadband customers has increased exponentially over the past several years. As customers increase the amount of time they spend on their mobile devices talking, emailing, and surfing the Internet, cell sites become constrained for capacity. In order to remain the world’s leader in innovation, we need to make more spectrum available,” Stearns said.

The National Broadband Plan also suggests that the Federal Communications Commission initiate a rulemaking to reallocate some spectrum currently in the hands of television stations from television broadcast to wireless broadband use. The Plan suggests that the Commission, among other things, determine rules for auctioning broadcast spectrum reclaimed through voluntary channel sharing or channel surrender, including a way for stations to receive a share of the proceeds for spectrum they contribute to the auction.

The National Broadband Plan’s recommendation concerning incentive-based auctions, with broadcasters sharing in the proceeds from the auction of spectrum they voluntarily return to the Federal Communications Commission, requires legislation. Boucher and Stearns today are introducing the requisite legislative measure.

Under the legislation, only in instances in which television broadcasters or other spectrum holders willingly enter into agreements with the FCC for the surrender of their spectrum in return for a portion of the auction revenues would the transaction be deemed to be voluntary. And “truly voluntary” means neither directly nor constructively involuntary. “Our goal is to ensure that any incentive auctions the Federal Communications Commission conducts are truly voluntary,” Boucher noted.

“The Voluntary Incentive Auctions Act takes the right approach to incentive-based spectrum auctions—enter into conversations with broadcasters and others about surrendering a portion of their spectrum on a voluntary basis, determine rules for incentive-based auctions that are truly voluntary and conduct the auctions in accordance with the agreement,” Boucher said.

“The Voluntary Incentive Auctions Act of 2010 is a positive step toward this goal.  It is important to stress that any incentive auctions conducted by the FCC are truly voluntary. No spectrum licensee, whether a broadcaster or wireless provider, should be forced to give up the spectrum they currently hold,” Stearns concluded.

Congressman Stearns

Congressman Boucher

From LA Times.com

A three-judge panel in New York says a rule on unscripted expletives on live broadcast TV and radio creates a ‘chilling effect’ in violation of the 1st Amendment. The ruling is a major victory for broadcast networks.

A federal appeals court on Tuesday struck down the government’s longstanding prohibition against indecency on broadcast television and radio, ruling that the policy was “unconstitutionally vague” and created a “chilling effect” that violated the 1st Amendment protection of free speech.

The ruling by a three-judge panel of the U.S. 2nd Circuit Court of Appeals in New York is a major victory for the broadcast TV networks, which jointly sued the Federal Communications Commission in 2006 in the wake of a tougher crackdown on indecency over the airwaves.

The suit stemmed from an FCC ruling in March 2006 that unscripted expletives uttered impromptu on live broadcasts, such as awards shows, violated indecency rules and were subject to fines.

The same court found in 2007 that the FCC’s policy on such so-called “fleeting expletives” was “arbitrary and capricious.” The FCC appealed the ruling and the Supreme Court upheld the crackdown on fleeting expletives that began in 2004.

But the Supreme Court’s 5-4 ruling was focused on the way the FCC enacted its tougher policy and sent the case back to the New York court to decide the broader issue of the constitutionality of the ban on profanity on the broadcast airwaves.

That policy dates back to a 1978 Supreme Court decision stemming from the radio broadcast of comedian George Carlin’s “seven dirty words” monologue. The FCC began a tougher crackdown on indecency in 2004 under the Bush administration.

Congress voted in 2006 to boost the maximum fine for each violation tenfold, to $325,000, in the aftermath of singer Janet Jackson’s so-called wardrobe malfunction during a performance in the Super Bowl halftime show in which one of her breasts was briefly exposed on live TV. Each station that airs an indecency violation can be hit with the fine, putting networks on the hook for as much as $35 million for each incident.

“Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,” U.S. Circuit Judge Rosemary S. Pooler wrote in Tuesday’s decision. “Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.”

The court cited the failure of several CBS affiliates not to air the Peabody Award-winning ” 9/11″ documentary, which contained some expletives in audio footage from firefighters responding to the Sept. 11, 2001, terrorist attacks.

Fox Broadcasting Co. cheered the ruling.

“We have always felt that the government’s position on fleeting expletives was unconstitutional,” the network said. “While we will continue to strive to eliminate expletives from live broadcasts, the inherent challenges broadcasters face with live television, coupled with the human element required for monitoring, must allow for the unfortunate isolated instances where inappropriate language slips through.”

Story by Jim Puzzanghera

With the arrival of hurricane season, the Federal Communications Commission (FCC) released a public notice, reminding all broadcasters and other video programming distributors (VPD) of their obligation to make emergency information accessible to persons with hearing or vision disabilities. The FCC further stressed that broadcasters and VPDs outside the geographic area directly impacted by an emergency may also need to comply with these rules, accommodating displaced persons and evacuees.

The FCC outlined in their notice ways in which broadcasters and VPDs might comply with the mandates of section 79.2 of the Commission’s rules for making emergency information accessible to both the aurally and visually impaired. Fact sheets summarizing the rules for closed captioning and access to emergency information rules can be found on the FCC’s website.

For more information about preparing your community for hurricane season and other natural disasters, visit www.NABSpotCenter.com for preparedness and relief information

May 24 (Bloomberg) — Democrats in the U.S. House and Senate said they will consider proposals starting next month to update the law that has regulated telephone, cable and broadcast companies for the past 14 years.

The lawmakers will begin “a process to develop proposals” to revise the 1934 Communications Act, which was last rewritten by Congress in 1996, leaders of two committees said today in an e-mailed statement. Senator Jay Rockefeller of West Virginia, chairman of the Commerce Committee, and Representative Henry Waxman of California, chairman of the Energy and Commerce Committee, are starting the process, according to the statement.

A drive to rewrite the law in 2006 died in the Senate after Democrats objected that it lacked rules on net neutrality, which would bar Internet service providers from interfering with subscribers’ Web traffic.

Net neutrality has re-emerged as a policy issue. A U.S. court in April said the Federal Communications Commission lacks authority over Comcast Corp.’s Web practices, sparking debate over the agency’s power to regulate Internet service providers.

“We applaud the congressional leadership call for proposals to update the communications act,” said Walter McCormick Jr., president of US Telecom, in an e-mailed statement. Members of the Washington-based trade group include the largest U.S. telephone companies AT&T Inc. and Verizon Communications Inc.

The commission declined to comment on the Rockefeller and Waxman statement, Jen Howard, an FCC spokeswoman, said in an e- mail.

FCC Authority

FCC Chairman Julius Genachowski on May 6 claimed authority under a part of the act written for telephone networks. Republican lawmakers said he improperly sought to expand regulation.

Today, 74 House Democrats told Genachowski in a letter that they have “serious concerns” about his proposed regulatory framework and urged him to await “direction from Congress.” Separately, 37 of the 41 Senate Republican members in a letter today urged Genachowski to “abandon” his proposal.

Genachowski in a blog posting on May 6 said the agency was ready to advise Congress if its “leaders decide to take up legislation” to “clarify the statute and the agency’s authority.”

Efforts in Congress can be “complementary to the efforts of the FCC, not a substitute for them,” said Whitney Smith, a spokeswoman for Senator John Kerry, a Massachusetts Democrat, in an e-mailed statement.

“It is time to engage in a methodical and thoughtful process to update our communications laws,” Smith said.