Law Professor: FCC Can Mandate Interim Carriage

Northwestern University Law Professor James Speta says the FCC has the authority to compel broadcasters to permit their signals to be carried by MVPDs during retrans impasses, citing the FCC's broad authority to regulate broadcasting and cable.

In comments filed to the FCC on its review of good faith retrans negotiations, Speta, co-author of Telecommunications Law and Policy, said the FCC appeared to be treating broadcasters' right to withhold a signal as a common law property right, which he said was incorrect.

Speta was paid by Mediacom, which also is of the opinion that the FCC has the authority to require carriage and should use it, to ponder the question, but Speta said the conclusions he reached were his own.

MVPDs are not usually trumpeting the width and breadth of FCC regulatory authority, but the retrans fight is a gloves-off affair.

The FCC has asserted it does not have the authority to compel such interim carriage, but cable operators are pushing the FCC to make withholding signals during negotiations de facto bad faith bargaining.

He says the FCC has broad authority over broadcasters and can impose any conditions on licensees it finds to be in the public interest. He also says it has broad authority over cable under the Communications Act, Cable Act and Telecom Act.

The FCC's power includes "remedial" actions—like interim carriage mandates—Speta says.

"I believe that the Commission’s overall authority to superintend the broadcast and cable markets as well as the statutory and regulatory nature of the retransmission consent right defeats the analogy to common law rights," he said, adding: "one of the fundamental premises of broadcast regulation is that a broadcaster does not have a property right in its license."

"The Commission is no doubt correct that “Congress did not intend the Commission to sit in judgment of the terms of every retransmission consent agreement executed between a broadcaster and an MVPD," he said. "But the Commission can take actions that fall far short of that level of intrusion, in my view, so long as it respects some right to bargain in good faith to impasse."

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.