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CBS To FCC: Inaction on Retrans is Best Course

Protecting the interests of consumers, and not those of a querulous industry [that would be MVPD's], should guide every Commission decision. Often, the Commission’s not acting will best serve the consumer. This is one of those times."

That was CBS telling the FCC that less is more in its review of the totality of circumstances test for good faith retransmission consent negotiations.

Comments were due Dec. 1 on the congressionally mandated review.

The FCC has suggested all manner of practices might be included in those considered in their "totality" to violate good faith bargaining requirements. But CBS says the FCC's "litany of proposals" are unwarranted.

"Any claim that an MVPD should have the right to “demand” anything of any broadcaster, be it the station’s signal, online video, or anything else MVPDs might wish the FCC to oversee, must be dismissed out of hand," it said. "[T]he commission should recognize that the functioning marketplace intended by Congress has become a reality that benefits consumers and therefore conclude that no changes should be made to its totality of the circumstances test."

As to the issue of access to online content, CBS says online distribution is a separate issue and should not remain outside the good faith discussion and "remains" outside the FCC's jurisdiction. It also said forcing broadcasters to provide online distribution rights at the request of MVPDs also raises First Amendment concerns.

It says that any regulation that compelled broadcasters to make content available when they otherwise would not is compelled speech antithetical to the First Amendment. "For corporations, as for individuals, the choice to speak includes within it the choice of what not to say.”