FCC Chairman Tom Wheeler announced in a blog post today that the Commission will not be modifying its rules implementing the good faith requirement for retransmission consent negotiations.
Under Section 325 of the Communications Act, a multichannel video programming distributor may not retransmit a broadcast television signal without the broadcaster’s consent. The statute requires broadcasters and MVPDs to “negotiate in good faith” for this retransmission consent. In implementing Section 325, the FCC has adopted a list of nine practices that constitute a per se breach of the duty to negotiate in good faith. The Commission considers allegations of other bad faith practices under a “totality of the circumstances” standard.
In the STELA Reauthorization Act of 2014, Congress directed the FCC to evaluate its “totality of the circumstances” test. Chairman Wheeler’s blog post stated that based on a review of the record:
[I]t is clear that more rules in this area are not what we need at this point. It is hard to get more inclusive than to review the “totality of circumstances.” 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.
Chairman Wheeler stressed that this does not mean the FCC will remove itself from the retransmission consent negotiations. To the contrary, he announced that the Commission has been actively involved in the current dispute between DISH Network and Tribune Media, mediating negotiations and sending information requests to each party. Chairman Wheeler warned that if the responses reveal “a dereliction of duty on the part of one or both parties, I will not hesitate to recommend appropriate Commission action.”
While the Chairman’s blog post appears to put the FCC’s “totality of the circumstances” inquiry to rest, the Commission still has a pending proceeding pertaining to enforcement of broadcast syndicated exclusivity and network non-duplication rights. However, nothing in the Chairman’s comments suggested that he intends to conclude that proceeding in the waning months of his chairmanship.