Is There a Role for Government in Retransmission Disputes?

On November 17, the Senate Communications, Technology, and the Internet Subcommittee held a hearing on television viewers, retransmission consent, and the public interest.

Senate Commerce Committee Chairman Jay Rockefeller (D-WV) said, "Television is a powerful force. But I believe the system we have for developing television content, packaging that content, and distributing it to consumers is broken. It may serve companies well. But it does not serve us well as consumers. And I believe it serves us even less well as citizens."

Subcommittee Chairman John Kerry (D-MA) that when consumers keep coming back to Congress saying they are being screwed, it is time to do something. "Regular everyday people get caught in the middle," he said, "and that is precisely what brings us here today." Sen Kerry called the hearing after drafting a bill that would impose fines for bad-faith bargaining, mandate standstill agreements that keep TV station signals on the air during retrans impasses, and would make the Federal Communications Commission a mediator, but not arbitrator, of the disputes. Sen Kerry has said that at the end of the day, the broadcaster will retain the right to pull a signal when there is a "good faith" impasse, but that the end of the day would come only after the FCC stepped in to evaluate both parties demands and recommend, or not recommend, outside arbitration. At the hearing, Kerry said he wanted to make sure that his commitment was not to any particular legislative option, but to consumer protection. Without more transparency and FCC oversight, he said, independent programming will be crowded out and prices will continue to rise.

Before the hearing, the American Cable Association wrote Chairman Kerry saying American Cable Association the lobbying group shared Kerry's view that the regulatory regime is broken and does not protect consumers. Free Press said it was glad the subcommittee was looking to prevent "blackouts" during future retrans fights. The Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) called on the subcommittee and the FCC to reform retransmission consent. ivi TV, the over-the-top video provider that is streaming station signals without having negotiated retrans payments, said "Consumers should not be used as pawns any longer in big media's chess game over control of the public airwaves. Instead of fewer options and higher fees. [T]hey should have more control over their own entertainment options, which is possible with innovations like ivi TV."