No Network Nondupe Rule Means no Distant Signal Retransmission Agreements, NBCU Says
Minus the network nonduplication rule, network affiliates can only enforce their nondupe rights in court by their network affiliation agreements banning any retransmission consent outside their markets, while those affiliates also would have to get contractual commitments from local multichannel…
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video programming distributors that they won't carry duplicative programming from distant stations, NBCUniversal said in an FCC ex parte filing posted Monday in docket 15-216. The filing covered a meeting between Margaret Tobey, vice president-regulatory affairs for the broadcaster, and a variety of Media Bureau staffers, plus the Office of the General Counsel, at which the network brought a litany of arguments on why the nondupe rule should be kept. The rule's safeguarding against duplication of network programming "preserves the full value of the network programming for each affiliate," NBCUniversal said. That value is "fundamental to the dual-revenue stream -- comprised of advertising revenues and retransmission consent fees -- that local broadcasters rely on to finance local program production and acquisition and to help offset network programming production and acquisition costs," NBCUniversal said. While backers of Chairman Tom Wheeler's plan to eliminate the exclusivity rules (see 1508120051) have argued the nondupe rule is unnecessary because local stations can enforce their rights in other ways, it "provides the most direct and efficient means of protecting those rights" and that Congress has been clear in its desire that the exclusivity rules remain, NBCUniversal said. And given compulsory license rules, MVPDs don't need network approval for retransmission, meaning the government "has made private enforcement of the contracted-for protection virtually impossible," NBCUniversal said. With the FCC looking at revising its 'totality of circumstances" test in good-faith retransmission negotiations, the network said, "it makes no sense to suggest that the Commission’s limited role in enforcing nonduplication protection is no longer needed because the parties can craft private remedies and then, in a separate and ongoing proceeding, to ask whether those same private remedies should be prohibited." At the very least, NBCUniversal said, the exclusivity rules should stand at least while GAO is undertaking a proceeding about whether compulsory copyright licenses should be phased out -- an argument it also made last month (see 1509240028).