NCCC, Sinclair Push, Pull FCC on Retransmission Consent Proceeding

tilts in favor of major MVPDs, Sinclair Senior Vice President-Strategy and Policy Rebecca Hanson told FCC officials including Media Bureau Chief Bill Lake. MVPDs have pushed for the FCC to give them regulatory negotiating advantages as part of the agency's examination of the good-faith negotiation rules, but Sinclair said major MVPDs' claim that they need government intervention against far smaller broadcasters "cannot be justified under any fair policy rationale," according to an ex parte filing Tuesday in docket 15-216 recapping the meeting. MVPDs also have complained about broadcaster negotiation terms, but most such negotiations are successful without any blackouts, "proving that such negotiating terms do not result in 'negotiations breaking down,' which is what Congress asked the FCC to review," Sinclair said. Sinclair repeated its argument (see 1603160042) that nonmonetary deal terms offered by broadcasters in negotiations help keep the cash portions of such deals lower: "Thus if MVPDs are concerned about rising retransmission costs, they should not be asking the FCC to ban any non-monetary deal terms from negotiations." In a separate ex parte filing in the docket Tuesday, Networks for Competition and Choice Coalition (NCCC) members said new and small MVPDs are particularly vulnerable to permanent loss of subscribers if they can't reach retrans consent agreements with broadcasters, and broadcasters use such leverage to force noncompetitive terms and unjustified rate increases. "The Commission must not ignore the fact that the retransmission consent marketplace is not working for smaller and new entrant MVPDs," NCCC said, saying the FCC must require negotiating parties in retrans talks to provide data substantiating or verifying claims, which would let small and new MVPDs better evaluate the prices being discussed. "Shining a light on the process could help ease the price discrimination between large, incumbent MVPDs, who are able to secure volume discounts and smaller providers who do not possess the leverage to negotiate favorable terms," NCCC said. The FCC also should limit or restrict nondisclosure agreements so retrans consent terms can be more freely shared with courts, regulatory agencies, legislators and membership associations and organizations, it said. NCCC said forced bundling should be considered a per se violation of good-faith negotiating, or alternately institute a rebuttable presumption that bundling is bad faith behavior in retrans talks. And it said the FCC should require negotiating parties to make their proposals at least six months before the end of an existing contract, and consider it a per se violation for negotiators to insist on contract expiration dates that are within 30 days of marquee events or other special programming or to withhold retrans consent around or during a major marquee event. FCC Media Bureau staff and representatives of Incompas, ITTA, NTCA, the Open Technology Institute at New America and Public Knowledge also attended the NCCC meeting.