Totality of Circumstances Test Changes Will Mean More Impasses, Sinclair Says

in retransmission consent negotiations, Sinclair said in a filing posted Wednesday in FCC docket 15-216. Those terms can include anything from channel placement to advertising availability in broadcast streams and are "part of the normal exercise of piecing together an appropriate value proposition with the tools at the MVPDs' disposal," Sinclair said. Similarly, it said, having various options in the mix at retrans consent talks "can't be deemed 'bad faith' because it actually demonstrates a willingness to reach an agreement by allowing for multiple combinations of value factors," thus increasing the likelihood of an agreement. Referring to a previous American Cable Association filing (see 1603090041), Sinclair denied it forced Cass Cable to negotiate for an unidentified cable channel since Cass could have offered something in place of that channel such as additional money, which Sinclair said it "would have considered." It also questioned how that particular term could be bad faith "when it was part of the bargaining mix that Cass Cable ultimately accepted." Sinclair also said after-acquired language -- which would extend the terms of an agreement between a broadcast group and MVPD to any station the broadcaster subsequently buys -- carries an inherent risk that it could result in lower retransmission revenue and cable companies similarly "should be able to accept and plan [for risks of paying higher retrans fees] as part of running their business without asking the FCC to shelter them from the ebbs and flows of the free market." After-acquired language has been standard for years in broadcast and MVPD retransmission consent agreements, and the FCC has no basis for now deciding broadcasters who suggest them are acting in bad faith, Sinclair said. The broadcaster also argued the proposed totality of circumstances test changes the FCC is considering would ultimately turn retrans talks into primarily about cash, leading to higher retrans consent rates and more frequent impasses. In a statement, ACA said, "Sinclair can’t hide from its past. Smaller cable operators have told the FCC that Sinclair demands they include provisions in their contracts requiring carriage of prospective programming and after-acquired stations at set terms and conditions. The operators that spoke with the FCC are just the tip of the iceberg because there are dozens more, if not hundreds, that can tell the exact same story. These are non-negotiable demands, they are inconsistent with good-faith negotiations, and the FCC should make clear that Sinclair and other broadcasters’ continued practices in this regard are unacceptable."