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As the Federal Communications Commission reviews what constitutes “good faith” when broadcasters and distributors negotiate with each other, CBS has delivered an implicit threat, telling the agency this week that Congress has only directed the FCC to review, not modify standards.
The FCC is nevertheless examining big changes to prevent blackouts for customers when retransmission negotiations go into overtime. Among the proposals being considered are preventing broadcasters from bundling channels in negotiations, dealing with exclusivity rules that prevent the importation of out-of-market TV signals and preventing broadcasters from blocking online access to their programming in order to gain leverage during a negotiation.
Famously, during a standoff between CBS and Time Warner Cable two years ago, CBS blocked Time Warner Cable customers from viewing CBS programming made available free online. It’s thus notable that in CBS’ comment to the FCC this week (read here in full), the broadcaster vigorously defended its right to do so.
“Local broadcast stations have a duty to transmit programming for free, over-the-air,” writes CBS. “They have no obligation to make any of that programming or any other content available online. The fact that many stations choose to do so for free as a routine business practice is in stark contrast to other content providers, including online newspapers and other media providers such as Netflix and Amazon that place their content behind paywalls.”
Reacting to comments from the cable and satellite distributors demanding an end to access-blocking, CBS not only suggests this would impose a “constitutionally infirm obligation,” but that the move would have unintended consequences.
“Prohibiting a broadcaster from limiting access to customers of an MVPD [multichannel video programming distributor] with which it is having a dispute in order to protect its negotiating position would be a strong disincentive for stations to make their content available online as a general practice,” argues CBS.
CBS also says that when a blackout occurs, customers still can get programming for free over-the-air (that is, if they have antennae equipment), but it also takes a woeful tone by noting, “Of course, that may no longer be true if the Commission’s regulations disfavor broadcasters over MVPDs and, as a result, high-quality content and other expensive programming such as sports events migrate from free, over-the-air stations to cable networks — where all consumers must purchase access to such content.”
With the ultimate conclusion for CBS being that programmers “must have the ability to control the distribution of their content,” the broadcaster adds in a footnote that such control is “intrinsically distinct” from the FCC’s net neutrality rules prohibiting ISPs from blocking access to content.
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