FCC Keeps Apprised of Fox-Dish Dispute, But Not Involved
The FCC remains on the sidelines of a carriage contract dispute between Dish Network and News Corp.’s Fox pay-TV programming unit, which has left the DBS provider’s customers without 19 regional sports networks, agency and industry officials said Wednesday. Last week the RSN programming and that of the FX and National Geographic national pay-TV channels no longer was available to any of Dish’s 14 million customers after Dish and Fox couldn’t agree to a new deal (CD Oct 4 p5). The continued lack of carriage has fueled requests of some groups seeking changes to retransmission consent and RSN carriage rules to press the FCC to act.
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Regulatory intervention in the spat anytime soon seems unlikely, agency and industry officials said. They said that’s because the commission doesn’t have statutory authority to intervene in programming disputes that don’t involve TV stations or pay-TV channels owned by cable operators, and also hasn’t received a complaint from Dish seeking required carriage. The dispute does raise the profile of cable carriage, and by extension retrans, before regulators and legislators and if they're more such spats Congress or the commission could get further involved, officials continue to predict. Speakers on a recent panel on retrans agreed the FCC isn’t likely to soon set new rules for how it should handle retrans impasses when TV stations and subscription-video operators can’t agree to new contract terms (CD Sept 30 p6).
There’s no item on circulation at the FCC that would seek comment in a rulemaking or notice of inquiry on changes in retrans dispute handling sought by 14 cable, DBS, telco and non-profit organizations, commission officials said. It doesn’t appear such an item will circulate soon, they said. During and leading up to the current Dish-Fox dispute, executives on both sides have kept FCC officials informed, one agency official said. A Media Bureau spokeswoman declined to comment.
"We continue to think the FCC is not going to get involved” in the Dish-Fox dispute, said analyst David Kaut of Stifel Nicolaus. “There really is no direct regulation implicated.” Month’s end is when a contract for Dish to distribute the broadcasts of News Corp.-owned Fox stations expires, he noted. “If the Fox broadcast signals go dark, then that would raise a potential” for further commission involvement, Kaut said. “And even there we think FCC use of the bully pulpit is more likely” than regulation, he added. “If you get a spate of these things, then that’s going to invite greater scrutiny."
News Corp. executives “are threatening to block their local Fox TV stations in many markets if we don’t submit to their demands for these sports channels,” a Dish spokeswoman said. “We continue to negotiate with Fox and we're hopeful we can reach a fair deal soon” on the RSNs, she continued. Dish is wrong to say it’s continuing carriage talks over the RSNs with Fox, a spokesman for the cable programmer said. “They have not come to the negotiating table” and Dish executives haven’t recently been in touch with their counterparts at Fox over substantive contractual issues, he added.
That “broadcasters just don’t get it” is evidenced by the current pay-TV dispute with Fox, said a spokesman for the American Television Alliance, seeking changes to retrans rules on behalf of members including Dish. “Blacking out sports networks across the country in the heart of the football season and the baseball playoffs will surely get the attention of policymakers. The threat of depriving viewers of the World Series clearly shows that Congress and the FCC must revisit the outdated rules on retransmission consent."
"Sports fans should not be treated like the pigskin in a clash between corporate behemoths,” Executive Director Brian Frederick of the Sports Fans Coalition wrote News Corp. CEO Rupert Murdoch on the fight over RSNs. The coalition, whose board includes an ex-Dish lawyer and officials at some of the entities seeking changes to retrans rules, hopes the FCC will get more involved in matters like this one, Frederick said in an interview. The agency should treat sports programming separately than it does other video content because tax dollars go toward the teams, he said. Sports programming is already treated differently in many respects. For instance, NFL blackout requirements keep its games off the air depending on the number of tickets sold to the game and the league has received antitrust exemption when negotiating with broadcasters, Frederick said: Sports “have already been granted certain privileges because of the nature of the business."
The letter to Murdoch is “disappointing” because it wasn’t also sent to Dish CEO Charlie Ergen, the Fox spokesman said. The Sports Fans Coalition is “founded and backed by a former member of Dish’s staff and currently a paid consultant to Dish,” the spokesman said. “The fact that the letter was sent only to Fox and not to Dish I think speaks for itself,” he said. “These folks appear to be a house organ for Dish."
Dish Network actually isn’t one of the coalition’s supporters, a spokesman for the group said. The letter only went to the cable programmer because “Fox owns rights, Fox pulled the programming,” he said. Had Dish declined to use the programming during negotiations, a similar letter would have gone to Dish, the spokesman said.