The FCC's Media Bureau has ruled that it was Dish, not reseller OpticalTel, that was responsible for negotiating a retransmission agreement with WXCW Naples, Fla., and so has granted the petition by OpticalTel to dismiss WXCW parent Sun Broadcasting's complaint against it.
The complaint was dismissed with prejudice, meaning it cannot be refiled.
The bureau, under then-FCC chairman Tom Wheeler, had concluded in an Aug. 15, 2016 order that OpticalTel had violated the commission's retransmission consent rules by retransmitting the station signal without the station's express authority.
On reconsideration, the acting Media Bureau chief Michelle Carey said the bureau had erred in that August 2016 decision, agreeing with OpticalTel that it should have looked to applicable precedent that "the obligation to obtain retransmission consent rests with the DBS operator, DISH, rather than the DBS reseller..." rather than focusing on the lack of a retrans agreement.
The FCC rules also say that when a satellite carrier retransmits a signal to a cable system, the cable operator—not the satellite operator—is responsible for securing retrans permission. But Carey said that that is a footnote to a general rule that the DBS operator is responsible, and that in this case OpticalTel was "acting as a DBS reseller, not as a cable operator."
That Aug. 15 decision hardly seemed a definitive one even at the time, however. The bureau did indeed find for Sun and against OpticalTel, but said its investigation was "hampered by multiple failures of communication and inadequate recordkeeping leading to an incomplete record and conflicting statements of fact" that led it to find against OpticalTel because it "believed" the signal was transmitted without retrans consent, not because it could conclude that with certainty.
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