Broadcast Affiliates to FCC: Leave Good Faith Test Alone

The Big Four broadcast network affiliates are in agreement with the National Association of Broadcasters that the Federal Communications Commission should take a light touch, actually a hands-off approach, in its review of what constitutes good faith retransmission consent negotiations. That came in comments to the FCC on whether it should add any new elements to its "totality of circumstances" test for good faith bargaining.

The FCC was required by Congress to open the inquiry, but broadcasters say that does not compel it to make any changes if it concludes, as broadcasters argue, that the "vibrant and functioning" regime is working as it ought to. Pay-TV operators have been pushing for major changes, saying broadcasters have undue leverage and are using it to extract usurious fees under threat of blackouts. But what they see as a flawed and broken system broadcasters label a healthy contentiousness that indicates a competitive market, not a broken one. They say that 99% of the time a deal is done without even the threat of what Pay-TV operators call a blackout and the affiliates call a "disruption" or "interruption" of service. In seeking that hands-off approach, the affiliate associations said the FCC should not dictate economic terms of retransmission deals in the "guise" of measuring good faith.