Broadcasters, MVPDs Lobby FCC, Some Citing Net Neutrality Ruling

Senior Vice President-Government and Public Relations Tom Larsen, American Cable Association Senior Vice President-Government Affairs Ross Lieberman and Dish Network Deputy General Counsel Jeff Blum met with FCC General Counsel Jonathan Sallet to discuss commission authority to deem it a violation of good-faith negotiating rules to refuse to extend a retransmission consent agreement under some circumstances and to require interim carriage of a station as a means of remedying violations of good-faith retrans, said an ex parte filing in docket 15-216 Tuesday. The MVPD group filers said nothing in Section 325 of the Cable Act precludes the FCC from ordering a station to give its consent to interim carriage as a remedial measure. They said last week's U.S. Court of Appeals for the D.C. Circuit decision upholding FCC net neutrality rules (see 1606140023) backs the idea that the Administrative Procedure Act's notice requirements don't bar the agency from being able to order interim carriage as a remedial measure or the revised good-faith rules that have been proposed for reforming its totality of circumstances test. Broadcasters also met with Sallet to argue Section 325 authority. They said its "express authority of the originating station" language about who can grant retrans consent is unambiguous and the FCC has no discretion to read that it has implied authority. Whatever authority the agency has under Section 325 to set up regulations for retrans "cannot strip stations of the basic right to decide whether or not to consent," said the broadcast group -- including Anne Lucey, CBS senior vice president-regulatory policy; Susan Fox, Disney vice president-government relations, Jared Sher, 21st Century Fox associate general counsel; and Victoria Jeffries, Univision assistant general counsel-public policy -- said an ex parte filing Tuesday. The broadcaster group also met with Chairman Tom Wheeler aide Jessica Almond, said an ex parte filing. It said the group said the argument broadcasters can force cable distributors to carry affiliated nonbroadcast networks "defy empirical marketplace realities," and treating bundling as a per se violation of the good-faith bargaining requirement would hurt competition. The broadcasters submitted as proof 2015 pay-TV subscriber data showing networks affiliated with broadcasters "have a variety of penetration levels." NAB, in an ex parte filing recapping its own meeting with Sallet, said it argued its case that under the Copyright Act, the FCC lacks authority to stop a blackout of copyrighted programming from online distribution to the benefit of pay-TV broadband subscribers during a retrans consent impasse. It also said MVPDs are ignoring the underlying issue: whether the FCC "can stretch its narrow good faith authority to regulate broadcast stations' copyrighted content generally and their online offerings specifically." The agency "cannot presume ... it can regulate online content simply because that content is distributed via the Internet by an entity that also happens to be a broadcaster who at times engages in retransmission consent negotiations," NAB said.