Private Contracts, Courts a Weak Substitute for Exclusivity Rules, State Broadcast Groups Say

groups representing all 50 states argued against FCC plans to eliminate the network nonduplication and syndicated exclusivity rules, as well as a Sept. 22 blog post by Media Bureau Chief Bill Lake arguing for dismantling the exclusivity rules (see 1509220024">1509220024). Relying on contracts "is not just ... more costly, less efficient and more time-consuming -- it is all of those things -- but ... enforcing a station's program exclusivity against cable signal importation is simply not possible" as TV stations have no legal remedies against their networks, distant stations being imported in, or cable systems doing the importing, and distant stations have no power to stop retransmission of their signals once signing a retrans agreement, the broadcaster associations said. Even if contracts could work as an alternative, the exclusivity rules should be kept or else the door is opened to "conflicted rulings and extended appeals [and] rulings from different courts based on different contract clauses [that] would provide little useful precedent, resulting in yet more litigation, forum shopping and uncertainty," the broadcast groups said. Local broadcasters also don't have any third-party standing to use against importation of a distant signal unless network affiliation contracts spell out that other affiliates are intended beneficiaries of the contract, they said. The broadcasters also criticized the argument that TV stations would be unlikely to give retrans rights outside of their designated market areas, as retransmission agreements typically aren't limited by geography, and multichannel video programming distributors "present stations with contracts containing just such language (and more camouflaged versions of it) to see if the broadcaster catches it," the broadcasters said. "It only takes a single station in the entire United States to wipe out the program exclusivity of every other station carrying the same programming in the absence of Exclusivity Rules." Networks can't even play the role of policing affiliates' retransmission agreements, since MVPD confidentiality clauses increasingly list networks as among the parties barred from access to terms of the retransmission consent, they said. In a separate ex parte filing posted Thursday in the docket, National Religious Broadcasters similarly urged the retention of the exclusivity rules. "A move to simply dismantle this one set of rules that provides a needed forum for broadcasters does not appear to lift a burden from the public. Rather, it is more likely to unbalance and further complicate the current framework, leading to uncertainty and additional costs for local stations," the group said.