FCC Order Would Ax Syndex, Network Nonduplication Rules

WASHINGTON — In a big win for cable operators, Federal Communications Commission chairman Tom Wheeler is circulating an order eliminating the network nonduplication and syndicated exclusivity rules, which means those protections from importation of duplicative network and syndicated programming into local-TV markets by pay TV providers would have to be struck contractually rather than prohibited by the FCC.

FCC officials speaking not for attribution framed it as removing "unnecessary and outdated rules."

Broadcasters have fought hard to preserve those rules, saying they were at the heart of localism, while cable operators have said they were an unnecessary thumb on the scales for broadcasters in program negotiations and prevented them from importing programming during retrans blackouts.

Wheeler seemed clearly in the cable camp in blogging about the order.

"These rules prevent an MVPD from providing subscribers an out-of-market broadcast station, for example, when a retransmission consent dispute results in a local station being dropped from carriage," he said. "In this item, the Commission takes its thumb off the scales and leaves the scope of such exclusivity to be decided by the parties, as we did in the Sports Blackout Order last year.  In so doing, the Commission would take 50-year old rules off our books that have been rendered unnecessary by today’s marketplace."

The item, being circulated to the other commissioners Wednesday (Aug. 12), dovetails with another just-circulated item just launching the FCC's review of good-faith retransmission consent negotiations.

The FCC had initially raised the idea of excising the network nonduplication and syndex rules under then-chairman Julius Genachowski. The FCC under Wheeler then proposed getting rid of them in a further notice of proposed rulemaking attached to a report and order on retrans in March of 2014. The item being circulated is in response to that further notice.

The National Association of Broadcasters earlier this year challenged the FCC's silence, in its over-the-top video redefinition item, on how  the network nonduplication and syndicated exclusivity rules would apply, which it said is essential to the concept of localism.

It received its answer Wednesday, which is that Wheeler doesn't think those rules should apply to any MVPDs.

That was only one of five Media Bureau items circulated Aug. 12. The others were one on AM radio revitalization; an order allowing contest rules to be placed online, rather than have to be delivered verbally, usually in unintelligible rapid fire, or visually, in small print, on-air; a direct-broadcast satellite market modification notice of proposed rulemaking to allow satellite operators to add or delete communities in an effort to address the orphan counties issue.

The commissioners still have to vote on all of those items.

The chairman outlined all the items in his blog post.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.