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Dish Files Good Faith Negotiation Complaint Against Media General

Dish said Friday it has filed a complaint with the FCC alleging Media General is violating the mandate to negotiate retransmission consent in "good faith."

The FCC cannot take any action until a formal complaint is filed. A source familiar with the filing said that the complaint would have been filed earlier had not the FCC been closed during the government shutdown.

Dish says Media General has failed to respond to Dish's last offer before their retrans blackout, which affects 17 Dish markets (see (v) below). "There could not be clearer evidence of bad faith than when a broadcaster post-blackout refuses to even negotiate. The company also argued that "Dish repeatedly has offered to enter into a temporary extension of the entire expiring agreement in order to prevent disruption to viewers, but Media General refused all such offers."

Media General stations went dark on Dish Oct. 1 after the parties could not reach a deal.

"Dish customers and Media General viewers were without their shows and events for 11 days before Media General would even contact us," said Dave Shull, Dish executive VP, in a statement. "We reacted with a counter offer within hours and Media General has yet to respond. Dish is asking the FCC to act expeditiously to address Media General's bad faith, push them back to the negotiating table and submit to mediation to get programming back to consumers."

Dish wants Media General to have to submit to third party mediation, which is one of the things the FCC was asked to consider in its open retrans docket.

Media General was reviewing the complaint at press time.

The FCC is empowered to enforce good faith negotiations, but still has an open proceeding addressing requests to better clarify just what constitutes good faith and what the FCC can do about it. But on the books are the following, which are considered violations of either a broadcaster or cable operator's good faith retrans negotiation duties.

(i) "Refusal by a Negotiating Entity to negotiate retransmission consent;

(ii) "Refusal by a Negotiating Entity to designate a representative with authority to make binding representations on retransmission consent;

(iii) "Refusal by a Negotiating Entity to meet and negotiate retransmission consent at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations;

(iv) "Refusal by a Negotiating Entity to put forth more than a single, unilateral proposal;

(v) "Failure of a Negotiating Entity to respond to a retransmission consent proposal of the other party, including the reasons for the rejection of any such proposal;

(vi) "Execution by a Negotiating Entity of an agreement with any party, a term or condition of which, requires that such Negotiating Entity not enter into a retransmission consent agreement with any other television broadcast station or multichannel video programming distributor; and

(vii) "Refusal by a Negotiating Entity to execute a written retransmission consent agreement that sets forth the full understanding of the television broadcast station and the multichannel video programming distributor."