The National Association of Broadcasters has proposed a new definition of bad actor, and it has nothing to do with the cast of Ed Wood's Plan 9 from Outer Space.
In a phone call with a staffer for FCC commissioner Ajit Pai, NAB executive VP and general counsel Rick Kaplan suggested that MVPDs are manufacturing retrans impasses as a way to pressure the FCC to "intervene and tinker" with the system.
Broadcasters have long argued MVPDs were engineering the impasses to get attention in D.C.—a retrans reform docket has been open for half a decade—but NAB suggested that with the FCC having just launched a congressionally mandated review of the definition of good faith bargaining, "certain MVPDs are all but certain to seize the opportunity to raise the profile of impasses, or near impasses, even in situations where negotiations might have otherwise concluded without a station being pulled by a pay TV provider from its system," said Kaplan,
To prevent such an eventuality, NAB suggests that the FCC create a "bad actor factor" in the "totality of circumstances" test for good faith, which would mean the FCC taking into account "circumstances where an MVPD created an impasse merely or primarily for advocacy purposes and at the expense of consumers."
Of course, the FCC would then need a way to establish that advocacy was the motive, which sounds easier said than done. But just the existence of the factor could be a prophylactic, Kaplan suggests. "Such an approach would hopefully dissuade certain MVPDs from continuing the apparent practice of manufacturing disputes that harm consumers merely to gain an advocacy foothold at the Commission or in Congress."
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