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Mass. Dispute Puts Retrans on FCC’s Radar

Washington — The discord over retransmission-consent
reached the nation’s capital again, prompting more than
a dozen legislators to request FCC intervention in the nowresolved
dispute between Sunbeam Television and
satellite-TV provider DirecTV.

Had the fight dragged on, it would have affected
Boston’s NBC affiliate — WHDH — on the eve of
Super Bowl XLVI on Feb. 5, which will feature the
hometown New England Patriots.

Even as the National Association of Broadcasters
has emphasized that the 2011-12 retransmission negotiating
season has been relatively quiet, access to
must-have sports programming has typically been a
driver of legislator concern.

And even though a settlement was reached last
Thursday evening (Jan. 30), the Federal Communications
Commission had been put on notice by Senate
Communications Subcommittee chairman John Kerry
(D-Mass.) that he would like to see some action in
its open proceeding on retrans.

In letters to Sunbeam, DirecTV, and contacts
with the FCC over the past 10 days, Massachusetts’ 10
House members, Kerry, Sen. Scott Brown (R-Mass.) and
Sen. Jeanne Shaheen (D-N.H.) had indicated they wanted
to see a deal done ASAP so that their DirecTV-subscriber
constituents could see the National Football League’s
championship game, and have pushed the FCC to step in
to make sure that happened.

CONGRESSIONAL PRESSURE

A letter from the House delegation, led by Democrats Ed
Markey, James McGovern and Barney Frank, said the lawmakers
were concerned about how the impasse would
have affected 200,000 Boston-area DirecTV subscribers.
The congressmen encouraged both parties to negotiate in
good faith and, as a backstop, said they had asked the FCC
to bring the sides together so talks could conclude “in an equitable
and expeditious manner.”

That is in addition to separate letters sent by Kerry
and Brown, who also wanted assurances the Super Bowl
would not be blacked out regardless of the status of
negotiations.

In his letter, Brown said he was concerned that his constituents
were being used as leverage in a business negotiation.
“It is outrageous that subscribers would pay hundreds of
dollars a year for service and not get to watch the Super
Bowl, the biggest television event of the year,” he wrote.
He also asked the parties to restore WHDH and WLVI, the
Sunbeam-owned The CW affiliate in Boston, to DirecTV
as talks continued.

Kerry pointed out in his letter that it was the third year
in a row he has contacted the FCC about a retrans dispute,
and urged the agency to complete its pending rulemaking
on retrans reform.

For its part, DirecTV had said it was available anytime
to resolve the deal, as long as it was a fair one.

In a letter to Massachusetts lawmakers last Tuesday (Jan.
24), DirecTV CEO Michael White said his company was
available 24/7 to negotiate with Sunbeam management
over the current retrans dispute involving the two Boston
stations and WSVN, the Fox affiliate in Miami.

White’s letter was in response to those from Brown and the
House delegation to DirectTV executive vice president of content
development and strategy Derek Chang which asked that
the two parties strike a deal, preferably before Feb. 5.

“The fact is that DirecTV has concluded more than 70 deals
in the past year compensating each of those station owners
fairly at market rates and we have been more than willing to
do the same for Sunbeam,” said White. “[W]e will do everything
possible to restore the NBC and CW stations for our Boston-
area customers.”

An identical letter was sent to 10 House members in response
to their letter and signed by Chang.

FCC WARY OF JUMPING IN

The FCC did not comment last week, but chairman Julius
Genachowski has heard the call for retrans reform before
and resisted it, reluctant to involve the agency in negotiations.
In the past, he has pointed to the limits of the FCC’s
authority in that area, which is to ensure good-faith bargaining.

But in its notice of proposed rulemaking on retrans, the
FCC aims to clarify what constitutes good-faith bargaining,
including determining which kinds of complaints would
not justify follow-up.

In addition, the FCC has at least floated the idea of waiving
the network nonduplication and syndicated exclusivity
rules during retransmission-consent disputes, allowing
pay TV providers to shop for similarly situated nearby local
stations.