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FCC Doesn't Expand Must-Carry in Channel-Sharing Order

The FCC voted unanimously Thursday (March 23) to allow TV stations more flexibility to share channels after the broadcast incentive auction but, in a victory for cable operators, with a change to the original draft to insure no new carriage obligations are put on MVPDs and no opportunity is given for LPTVs without must-carry rights to gain them.

The FCC made clear in the item that a low-power TV station that strikes a sharing agreement with a station with must-carry rights that it will only share in those must-carry rights if it had must carry in its previous, non-sharing life.

FCC commissioner Michael O'Rielly signaled that change was important and commissioner Mignon Clyburn signaled she wished it had stayed in.

The new order allows TV stations with an auction-related sharing agreement to continue to share—by striking a new agreement—after that agreement ends or what the FCC calls "second generation" sharing. They had originally been term-limited agreements, a sort of glide path for those who took payouts for their spectrum but still wanted to remain in the business by sharing with another station.

The order also allows Class A low-power TV stations to share outside of auction agreements and allows LPTVs and translators to share with other LPTVs or with full-powers or Class As so they can stay on the air if displaced in the repack.

The FCC also said sharing can reduce construction and operating costs for the LPTVs, many of which have limited resources, are minority owned, or serve underserved audiences.

Clyburn said she was disappointed that the FCC had "closed the door" on the "very rare" instances where a low-power could gain must-carry by sharing with a must-carry station.

"In doing so, we have stricken from the Order, a simple acknowledgement that the 'benefits of channel sharing for secondary stations, outweigh any theoretical increase in the number of secondary stations cable operators may be required to carry.'" But she acknowledged that LPTVs could still negotiate carriage, adding "I am hopeful that many stations will find this to be a viable option."

O'Rielly said it was important that must-carry rights were not being expanded. "Simply put," he said, "the item maintains the status quo," he said.

"Whatever rights the station had to trigger must-carry previously are retained and no new rights are created," he said, adding: "We are deciding not to reopen that can of worms here."

“NAB commends the Commission for providing additional flexibility to channel-sharing broadcasters following the auction," said NAB EVP communications Dennis Wharton. "By giving stations options to replace sharing agreements that expire or terminate after the auction, the Commission provides greater certainty for stations that choose to enter into such agreements.”