Media Bureau Seeks Comment on Network/Affiliate Relationships, Preemption
The FCC Media Bureau is seeking comment by Dec. 10 on possible agency oversight of network/affiliate contracts, broadcaster preemption rights and future rulemakings on programming agreements, said a public notice Wednesday.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“This Public Notice is an important step in gathering the information needed to consider whether the national programming networks are exerting undue influence or control over their affiliate stations,” it said. The item appeared to be the expansion of the FCC’s probe into network/affiliate relationships that FCC Chairman Brendan Carr hinted at on Tuesday. Reply comments in the proceeding are due Dec. 24.
The notice sought comment on a possible “imbalance” in the relationship between station owners and networks and whether that “frustrates local broadcasters in their efforts to fulfill their public interest obligations.”
Carr said Tuesday that the agency was examining the possibility of strengthening stations’ rights to preempt programming. “Over the years, folks have told me they have interest in doing it, but they haven't felt like the FCC would have their back,” he said. “And I do think we should look at ways of strengthening the right to preempt.” In September, Nexstar and Sinclair preempted Jimmy Kimmel Live! for several days after Carr threatened consequences if ABC failed to "take action" (see 2509260054).
Wednesday's notice included extensive questions about broadcaster preemption and clauses limiting it in network affiliate contracts. “We seek comment on whether and how network affiliation agreements or the current dynamics of the network/affiliate relationship may be impeding the ability of affiliates to maintain ultimate control over the critical decisions of their stations, including station programming and operations.”
The FCC has the authority to regulate the relationships between networks and affiliates, though networks aren’t direct regulatees of the agency, the notice said. “The FCC has long had rules on its book that regulate the rights that national programmers can obtain from local television broadcasters.”
The item also appeared to seek comment on virtual MVPDs, an issue that broadcasters have long urged the FCC to take up. “Many local affiliates object to provisions that limit their ability to negotiate directly with certain video programming distributors. Should the Commission amend or clarify its rules to address any such situations and, if so, how?” It also asked about applying good faith provisions, similar to those that apply to retransmission consent contracts, to network contracts.
In addition, the item sought input on future FCC review of all network/affiliate contracts and on the possibility of FCC remedial action against existing contracts that don’t measure up to any new agency rules. “Should the Commission simply declare that such provisions are unenforceable and/or provide a safe harbor for affiliates and networks to renegotiate their agreements?” It asked about possible new rules that could allow broadcasters to run programming from other sources while in an affiliation agreement, comparing the proposal to past FCC efforts to make radio more competitive.
A broadcast attorney told us that station groups do negotiate with networks from a weaker position and could welcome FCC efforts to rebalance the relationship. However, if new rules make affiliation agreements too onerous for networks, they could opt to take their content to streaming services or other competitors. “There are a lot of options out there for video programming,” the attorney said.