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Wheeler Moves to Strike Exclusivity Rules

WASHINGTON — After years of requests that the Federal Communications Commission eliminate broadcast-exclusivity rules that prevented cable operators from negotiating with out-of-market stations during retransmission-consent impasses, chairman Tom Wheeler has delivered the good news.

Wheeler was no fan of the so-called syndex rules as head of the National Cable & Telcommunications Association from 1979 to 1984. He called them outdated and proposed letting the marketplace decide what exclusivity broadcasters are able to negotiate.

The epitaph for the rules might have started to be written a year ago next month, when the FCC voted to scrap the sports blackout rules, which had backstopped another form of exclusivity to take the government out of the blackout-abetting business.

At the time, there was some speculation that the elimination of those rules was a signal the FCC might go the same route with syndex and network nonduplication.

Broadcasters opined earlier this year in comments on the definition of over-the-top providers that the FCC was silent about how it would be applying the exclusivity rules to OTT providers it was planning to reclassify as multichannel video programming distributors (MVPDs). Apparently, that was because the plan was not to apply them to any MVPDs.

Broadcasters have fought just as hard to preserve the rules, saying they are at the heart of localism, while cable operators have said they are an unnecessary thumb on the scale for broadcasters in program negotiations.

Wheeler seemed clearly in the cable camp in blogging about the order. He even invoked the blackout rules as precedent.

The item, which was circulated to the other commissioners last Wednesday (Aug. 12), dovetails with another just-circulated item launching the FCC’s review of good-faith retrans negotiations.

The FCC had initially raised the specter of excising the network nonduplication and syndex rules under former chairman Julius Genachowski. The FCC under Wheeler then proposed getting rid of them in a further notice of proposed rulemaking attached to a report and order on retrans in March 2014. The item being circulated is responsive to that further notice.