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NPRM Adopted in December

MVPDs, Broadcasters Clash Over Blackout Reporting

Multichannel video programming distributors and broadcasters disagree on the FCC's proposed requirement of mandatory reporting of channel blackouts due to failed retransmission consent talks. MVPDs back the requirement, while broadcasters oppose it, according to docket 23-427 comments this week. The commissioners adopted the blackout reporting NPRM in December (see 2312210061).

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Putting the reporting responsibility on MVPDs is fine as long as that doesn't imply the cable operator is at fault for the blacked-out station no longer being carried in the cable system's lineup, the NCTA said. The reporting requirement should apply only to blackouts of the primary streams of commercial full-power stations, and to low-power V stations and Class A stations only if those stations carry a network feed. The reporting requirement should apply solely to multicast streams carrying a network feed, said NCTA. It said the blackout reporting should involve only the timing and counties involved, and subscriber data isn't necessary. Making MVPDs identify the broadcast group that owns the blacked-out station is also unnecessary because the FCC has that data available, it said.

Also backing the blackout-reporting proposal, the American TV Alliance urged the FCC to require only an estimate of the number of subscribers affected to within 5,000 rather than an exact number, as that would be easier to comply with.

The reporting requirement exceeds the "very limited authority" of the FCC relating to retransmission consent, said NAB. It said the proposal also sits outside agency authority to regulate MVPDs' customer service or public interest obligations. The pay-TV industry's advocacy before Congress and the FCC revolves around creating disputes with broadcasters, and creation of a blackout database "will, if anything, incentivize more retransmission consent impasses, rather than reducing them," said NAB.

The reporting requirement creates "yet another regulatory burden on the smallest MVPD providers who struggle to continue to provide service in the face of staggering cost increases to help deliver that content for the broadcasters," the National Telecommunications Cooperative Association said. NTCA said the reporting requirement wouldn't collect enough information about blackouts' root causes to be of use to the agency or the public. If the FCC goes forward with the proposal, it should declare nondisclosure provisions null and void under those blackout circumstances, said NTCA, letting MVPDs report such data as when the retrans consent contract was offered, the price demanded, the amount of the price increase year over year and the timing of threats to withhold content relative to "must have" content such as a major sports event.

Georgia cable operator Skitter Cable urged the FCC to dive deeper into the reasons for broadcast blackouts. Skitter said the agency should examine "the explosion in rates demanded by broadcast affiliates" and consider remedies to current negotiation practices and rate demands, including arbitration.