FCC Should Widen Its Look at Bad-Faith Negotiating Practices, Mediacom Says

a list of those negotiating practices, such as refusals to agree to a continuation of carriage before a complete negotiation breakdown -- saying blackouts should only come when the parties have reached a final impasse -- and the setting of dates for expiration of retransmission consent agreements other than the standard three years -- since these non-uniform durations give stations additional leverage. Also on its list are demands by local broadcasters for a certain level of retrans revenue to fund the production or purchase of locally oriented programming without having to prove the money is actually going to that purpose, and invocation of network exclusivity rights during a broadcaster-imposed blackout -- which would mean the FCC also would have to label an out-of-market station not letting its signal be imported by a multichannel video programming distributor during a blackout as bad faith as well, Mediacom said. The NPRM on the totality of circumstances test (see 1509030044">1509030044) also "is strangely silent" on enforcement of good-faith negotiations, and should consider such penalties as forcing the reopening of negotiations for 90 days -- along with service to be restored for 90 days -- in the face of a prima facie showing of bad faith, Mediacom said. The company also listed other acts that should be considered inconsistent with the good-faith obligation, such as broadcasters requiring MVPDs to waive the right to pursue any remedies for misconduct that seemingly broke the law, forcing MVPDs to install set-top boxes, and refusing to offer different MVPDs the same non-economic rights or benefits in the same market on roughly similar terms.