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Affils to FCC: Leave Retrans Bargaining Test Alone

The Big Four affiliate associations have told the FCC to keep its hands off its "totality of circumstances" test.

The FCC has asked how it might adjust that retransmission consent good faith negotiations test per a congressional mandate to review it, but the affiliates say its review should conclude that the beauty of that test is its flexibility and not modify, expand it or make it more specific.

Various cable operators and other MVPDS have advised the FCC to add a number of specific no-no's, including bundling deals, blackouts and blocking access to online content during impasses.

The affiliates of ABC, CBS, Fox and NBC told the commission that the retrans marketplace is healthy as is and "no changes" in the good faith regime are needed.

The FCC has asked whether it should move to prevent bundling, blackouts or limit broadcasters ability to control online content during impasses. The affiliates said no, no and no.  

"[T]he Commission has never allowed the 'totality of the circumstances' test to serve as a ‘back door’ inquiry into the substantive terms negotiated between the parties, and should not begin now, they said. adding: "The Affiliates Associations respectfully urge the Commission to resist the unrelenting and repetitive assault by MVPDs on the good faith negotiation statutory framework and

their plea for the Commission to place its regulatory thumb on the scale to their self-serving, competitive advantage."

They also said the FCC does not recognize the increased MVPD leverage in negotiations due to the "massive consolidation" of the MVPD industry, or the disparity between what cable operators pay for cable channels versus what they pay for more popular broadcast signals.

Broadcast retrans payments are only 12.5% of the projected $50.2 billion MVPDS will pay for programming in 2015, they said, while broadcast TV represents a 35% share of total day audience. "The indisputable fact is that local stations are not, as MVPDs would have the Commission believe, charging MVPDs anywhere close to fair market value for the privilege of reselling local broadcast station signals at a profit," they said.

Initial comments on the FCC inquiry were due Dec. 1.