American Cable Association: Top-Four Tying Is Retransmission 'Good Faith' Violation

Small and midsized cable operators say nothing in the National Association of Broadcasters opposition changes their request that the Federal Communications Commission make certain broadcast retransmission negotiations de facto violations of its good faith standard. The American Cable Association told the FCC back in December that broadcasters with a top-four network affiliate should not be able to tie carriage of must-have programming like a regional sports network to that negotiation but instead negotiated each separately.

The FCC is currently considering, under a congressional directive, what, if any, changes to make to the standard for what constitutes good-faith negotiation, including whether bundling might be a violation. ACA says it is, while the NAB said definitely not in a response to ACA's filing. In an ex parte letter, ACA defended its initial position taking aim at NAB's criticisms, saying they are misleading and no reason to retain the presumption that bundling is consistent with competition. ACA argues that the tying of a top-four affiliate and an RSN with games of a local sports team, both "must-have" programming in a market, cannot be said to be based on "competitive marketplace considerations," as the FCC found was the case for other forms of tying in its earlier good faith order back in 2000.