Law Professor: FCC Can Mandate Interim Carriage

Northwestern University Law Professor James Speta says the Federal Communications Commission has the authority to compel broadcasters to permit their signals to be carried by mulitchannel video programming distributors (MVPDs, or pay-TV) during retransmission impasses, citing the FCC's broad authority to regulate broadcasting and cable.

In comments filed to the FCC on its review of good faith retransmission negotiations, Speta, co-author of Telecommunications Law and Policy, said the FCC appeared to be treating broadcasters' right to withhold a signal as a common law property right, which he said was incorrect. Speta was paid by Mediacom, which also is of the opinion that the FCC has the authority to require carriage and should use it, to ponder the question, but Speta said the conclusions he reached were his own.

MVPDs are not usually trumpeting the width and breadth of FCC regulatory authority, but the retransmission fight is a gloves-off affair. The FCC has asserted it does not have the authority to compel such interim carriage, but cable operators are pushing the FCC to make withholding signals during negotiations de facto bad faith bargaining. He says the FCC has broad authority over broadcasters and can impose any conditions on licensees it finds to be in the public interest. He also says it has broad authority over cable under the Communications Act, Cable Act and Telecom Act. The FCC's power includes "remedial" actions—like interim carriage mandates—Speta says.