Nexstar has told the FCC that Time Warner Cable is impermissibly
using Nexstar's TV stations as pawns in its retrans dispute with Hearst TV. Time
Warner Cable says it is doing nothing wrong.
In an emergency petition to the FCC for an injunction,
Nexstar has asked the commission tell TWC to stop importing three of its
stations into markets hundreds of miles away as substitutes for Hearst TV stations
it is no longer carrying in those markets due to an ongoing retrans impasse.
It also asked for sanctions for Time Warner Cable's
"repeated and willful violation."
Nexstar says its retrans agreement with TWC covers the cable
operators' carriage of WBRE in Wilkes Barre/Scranton, Pa.; WTWO Terre Haute,
Ind.; and WROC in Rochester, N.Y., and points out that back in 2010, it sought
an injunction against Nexstar for importing WBRE into the Utica, N.Y., DMA
during another retrans dispute without providing the FCC-required notice that
it was deleting and adding stations, a petition, it points out, has yet to be
acted on.
Now, says Nexstar, TWC is again importing WBRE, as well as
those of WROC and WTWO, to far-flung markets -- Burlington-Plattsburgh,
Cincinnati, Winston-Salem, and Orlando in the case of WBRE and Louisville, Ky.,
in the case of WROC -- as "replacement stations" for Hearst TV stations,
again, it says, without providing the requisite 30-day notice to the stations
or required notice to subscribers or franchising authorities.
Had it had the notice, said Nexstar, it could have taken
court action to prevent its stations from being used as "pawns."
One of the standards for granting an injunction is that the
party could suffer irreparable harm without it. As evidence, Nexstar points out
that TWC is importing WBRE and its Eyewitness News-branded local news into
Orlando, where WFTV there already has the Eyewitness News moniker and has asked
the station to desist, which it can't do without removing the brand in its home
market.
"Time Warner Cable's retransmission of Nexstar's
signals is fully authorized by the retransmission consent agreement between the
parties and allows us to seamlessly continue carriage of the network
programming that Hearst Broadcasting pulled from our systems in an attempt to
force consumers to pay more for it," said Time Warner Cable in a statement
Tuesday. "This carriage assures our customers of continued access to the
upcoming Olympics coverage and other important programming. We are disappointed
that Nexstar is working to assist and expand Hearst's leverage against us and
our customers by bringing this suit. We are confident that we are operating within
our rights and the law and will continue to fight for our customers against
this aggressive and coercive broadcaster behavior."
Nexstar points out that in responding to the 2010 complaint,
TWC had also argued that it was preventing consumer harm from the loss of
popular network programming. But Nexstar counters that "Time Warner's
desire to avoid annoying its subscribers does not excuse its failure to comply
with the law."
The FCC's exclusivity rules do not ensure signal
exclusivity. Instead, they put the force of FCC rules behind contract
exclusivity terms so long as the requisite notice is given to affected parties,
including subs, about potential signal additions or subtractions related to
those contracts.
For example, TV stations have to provide notice to cable
operators before they drop a signal that their network contracts provide
exclusivity against the importation of duplicating network affiliates. The
cable company then has the right to ask for a copy of the affiliation agreement
language and has 60 days to comply, including giving their subs at least 60-days'
notice. So, if that notice does not come at least 60 days before a signal is
pulled, a cable operator could keep the signal on the air and not run afoul of
FCC rules.
If the station has provided that notice sufficiently in
advance, and a cable operator keeps the signal on anyway or repositions a
station without sufficient notice, it is in violation of FCC rules.
For example, the FCCjust two weeks ago fined a cable operator $30,000 for impermissibly continuingto carry TV station signals after the contract had expired during a retrans
fight.
