August 12, 2015 - 12:00 pm
By Tom Wheeler | FCC Chairman

While summer may be hiatus for some television programs, here at the Commission we’ve been hard at work to ensure a more competitive video marketplace for American consumers.

In December of last year, Congress passed bipartisan legislation known as the Satellite Television Extension and Localism Act Reauthorization (STELAR) Act of 2014, which instructs and permits the Commission to modernize rules regarding the satellite, cable, and broadcast television markets. Today, I am circulating a bundle of orders and proposals that fulfill this mandate to better reflect today’s media marketplace and further protect the public interest.

Our work under the STELAR legislation will accomplish two primary pro-consumer ends.  First, pursuant to STELAR requirements, we adopt a process by which parties may seek modification of a TV station’s local television market to add or delete communities in order to better reflect market realities.  This process has been in place for cable since 1992, and this order will extend that process to the satellite market, but will now also allow local governments, as well as broadcasters and satellite providers, to seek changes to markets for purposes of satellite carriage.  Where satellite providers have the technical ability to carry a station, and where broadcasters are willing to be carried, the market modification process may, in some instances, address the problem of “orphan counties” and allow consumers to receive previously unavailable in-state broadcast programming, including news, public affairs, and sports.  

I am also circulating a notice of proposed rulemaking (NPRM) to review the so-called “totality of the circumstances test” for good faith negotiations over retransmission of broadcast TV signals. Such negotiations have sometimes led to stand-offs and temporary blackouts for Pay TV customers. The Communications Act requires broadcasters and multichannel video programming distributors (MVPDs) – cable companies and satellite providers – to negotiate retransmission consent “in good faith.” The Commission has implemented this requirement through a two-part framework for evaluating good faith in this context.  First, the Commission has established a list of objective good faith negotiation standards, the violation of which is considered a per se breach of the statutory obligation to negotiate in good faith. Second, even if the specific per se standards are met, the Commission may consider whether, based on the totality of the circumstances, a party has failed to negotiate retransmission consent in good faith. The NPRM currently before the Commission undertakes a robust examination of practices used by parties in retransmission consent negotiations, as required by Congress. The goal of the proposed rulemaking is to ensure that these negotiations are conducted fairly and in a way that protects consumers.

Beyond our STELAR-required actions, my colleagues and I will consider several additional items that protect consumers and modernize media policies in other ways. 

First, we will update the Contest Rule for the Internet age, allowing broadcasters to disclose the material terms of station-run contests online instead of, or in addition to, over the air.  Commissioner O’Rielly called for this modernization, and the NPRM received unanimous support

I am also putting forth an order that proposes elimination of outdated “exclusivity rules.”  These rules prevent an MVPD from providing subscribers an out-of-market broadcast station, for example, when a retransmission consent dispute results in a local station being dropped from carriage. In this item, the Commission takes its thumb off the scales and leaves the scope of such exclusivity to be decided by the parties, as we did in the Sports Blackout Order last year.  In so doing, the Commission would take 50-year old rules off our books that have been rendered unnecessary by today’s marketplace. 

I will also recommend adoption of several proposals discussed in the 2013 AM Radio Revitalization NPRM, which we believe will further enhance the viability of the AM broadcast service, and ask about further suggested updates by way of an FNPRM and NOI. I look forward to working on this issue, launched by  then-Acting Chairwoman Clyburn and championed by Commissioner Pai, and hope that broadcasters will participate extensively. This comprehensive set of actions modernize our rules to keep them in line with the public interest in an ever-changing marketplace, and will help to ensure the continued vitality of AM radio.

These actions work to bring governance up to date with the practical realities of today’s media landscape and will ensure that consumers remain well-served by our media policies.