The American Cable Association says the FCC's totality of circumstances test for good faith retransmission consent negotiations, adopted in 2000, is vague and overly permissive and has allowed broadcasters to abuse their market power to demand unreasonable terms, including program bundling that hurts consumers.
That was among the comments flooding the commission at the Dec. 1 deadline for initial input on its congressionally mandated review of what constitutes the "totality of the circumstances" that would constitute not bargaining in good faith.
"The problems associated with the conduct and proposals of station owners are well known: increasingly acrimonious negotiations, growing incidences of blackouts, including online blackouts, and spiraling price increases," ACA said.
ACA said Congress meant for the FCC to reform its retrans rules through the mandatory proceeding, something broadcasters dispute.
ACA said the FCC has the authority and responsibility to take "muscular action" to reform them, including taking a public interest approach and deeming whatever causes consumer harm de facto bad faith.
In launching the rulemaking Sept. 2, the FCC asked whether "causing consumers harm to enhance negotiating leverage generally be a factor that we should consider as evidence of bad faith under the totality of the circumstances test."
Beyond that, ACA says the FCC should "update" its list of tactics that are considered presumptively "consistent with marketplace conditions," something the FCC appears ready to do, though the rulemaking proposal tees them all up as potential changes without endorsing them.
Bundling programming is currently presumptively OK, but the FCC signaled it could remove that from the list and ACA is urging it to do so.
