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Capitol Hill Is Not Hot for Exclusivity Move

Federal Communications Commission chairman Tom Wheeler’s plan to eliminate the broadcast exclusivity rules has run into even more pushback from Capitol Hill.

Eliminating the rules could allow cable operators to import duplicative programming into a market during retransmission impasses, weakening broadcasters’ hand in those negotiations.

Fans of the move have argued it is a natural follow-on to the FCC’s elimination of the sports blackout rule, with both providing government backstops to contractual exclusivity in marketplace contracts.

But while a pair of powerful legislators were pushing for elimination of that sports rule — Sens. John McCain (R-Ariz.) and Richard Blumenthal (D-Conn.) — the Hill power has been massing on the other side of the issue in the case of the syndicated exclusivity and network non-duplication rules, which prevent the importation of distant TV station network and syndicated programming into local markets.

It has been two months since the chairman circulated the item for a vote. And a source close to one of the commissioners said they are still taking meetings and, at press time, had not begun to discuss it.

Once an item has three votes in favor, the other commissioners are on a time clock, and after three weeks, it could be adopted even without other votes. The item did not have even three votes at press time.

Major Hill players have been voting with their pens, firing off letters to Wheeler making it clear they want the FCC to back off and work with Congress on the issue rather than take unilateral action.

In a town where bipartisanship is measured in angstroms, the top Republicans and Democrats — chairs and ranking members — of the Senate Commerce and Judiciary Committees, have weighed in officially to ask the FCC not to act until Congress weighs in on the compulsory copyright license.

That was Congress’ decision in 1976 to promote competition to broadcasting by giving cable operators access to broadcast programming through a blanket license, rather than making them negotiate for it separately.

If the government is going to get out of the business of backstopping exclusivity, goes the argument, then it should get out of the business of guaranteeing access to programming at a government-supported price.