Exclusivity Rules Opponents Increasingly Pointing to Sports Blackout Rule as Precedent

and Time Warner Cable in an ex parte filing posted Tuesday in docket 10-71 and Comptel, ITTA, NTCA and Public Knowledge in a separate ex parte filing the same day raised the analogy in making their cases for rule repeals. Legislative history doesn't support broadcaster arguments for keeping the exclusivity rules, Comptel et al. said. Though broadcasters have pointed to Senate report language from 1991 seemingly indicating lawmakers' wishes that the exclusivity rules stand, that language actually indicates the FCC "should hesitate to change its rules in a manner that would allow distant stations to export their signals to markets where a local station has bargained-for exclusivity," Comptel et al. said. That the 1992 Cable Act doesn't even mention the exclusivity rules -- to the contrary, it makes it clear it doesn't alter the Copyright Act which indicates the FCC might amend or repeal the exclusivity rules -- also is significant, ACA et al. said. Repealing the exclusivity rules wouldn't do this because such a distant station's own contractual agreements likely would ban it, the Comptel group said. The very dearth of exclusivity complaints filed by broadcasters points to the rules being unnecessary for safeguarding broadcasters' contractual exclusivity arrangements with program suppliers, the Comptel group said, saying they more likely "distort the marketplace" by giving encouraging local stations, networks and programmers to continue with the arrangements "instead of exploring new ways to deliver programming to viewers." Minus such rules, local station/network affiliation agreements and local stations' multichannel video programming distributor retrans agreements still limit cable importation of distant signals, the groups said. Minus such rules, networks and programing suppliers still have "ample recourse in the courts" to go after "rogue affiliates" that grant retrans rights to MVPDs without any authority, Comptel et al. said. Meanwhile, "it is perfectly fair" for local broadcasters to negotiate with cable operators for guarantees the MVPD will black out some or all duplicative network or syndicated programming airing on other stations it carries, as well as the means by which the cable operator would identify the programming to be blacked out and the way such disputes would be resolved other than filing a complaint with the agency, ACA et al. said. The Comptel filing recapped a meeting between representatives of the groups and staff in Commissioner Ajit Pai's office. The ACA filing covered a pair of meetings between executives from the cable interests and staff of Pai and of Commissioner Mike O'Rielly.