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ACA To FCC: Deal With Our Retrans Petition on Its Own Merits

The American Cable Association has asked the FCC not to use its denial of Time Warner Cable's retransmission consent-related petition to block one set of station sales as precedent in ACA's petition to stop another, citing what it says are key differences between the two.

The FCC recently denied TWC's petition to block the sale of two ACME stations in Wisconsin and Ohio to LIN and to an owner whose station is being run by LIN. The FCC concluded that one station had met the FCC definition of failing station, and that bargaining collectively for the station's retrans payments did not violate FCC rules. It also concluded that none of the sales broke existing FCC rules and that TWC's claims of potential harm from the combined negotiation were speculative and better dealt with in the FCC's open retransmission consent proceeding.

TWC had argued, in part, that the deals should not go through because the resulting duopoly and combination of ownership and management would give LIN too much leverage in retrans agreements, since LIN had signaled it planned to combine retrans negotiations for the paired stations.

In March, ACA petitioned to deny the sale of a Topeka station it said would create a virtual triopoly, arguing the sale would mean the "significant likelihood that three of the major network affiliates in Topeka would coordinate their retrans negations' to the disservice of the public and ACA members.

For one thing, says ACA, the stations it is targeting in the virtual Topeka triopoly are Big Four network affiliates with more market power and must-have programming than the CW affiliates the TWC petition targeted. For another, its petition is dealing with three stations potentially coordinating negotiations, rather than the two stations in TWC's petition, said ACA.

ACA also said that the stations in the TWC petition had made public interest showings, while the stations in Topeka had not, and that the fact that ACA talked about "likely" harms in the future" did not make them speculative. "Certainty is not required for the commission to act," it said, any more than it was when the FCC made predictive judgments in applying conditions to the Comcast/NBCU merger.

ACA says it is not looking for "broad reformation" of the retransmission consent process via the petition--though it has petitioned the FCC separately for big changes in a rulemaking that is currently open.