The FCC — Caught Between a Retrans Rock and a Hard Place

By Richard R. Zaragoza

Talk about being in a tough spot. Members of Congress are urging the FCC to broker an agreement between Cablevision and Fox in their ongoing retransmission consent dispute. Cablevision’s subscribers in the impacted areas are worried that the contractual dispute will not end any time soon and the FCC is obviously concerned with the consumer disruption. But what can the FCC actually do? The answer is, not much, and it appears to be doing all it can at the moment.

As a matter of longstanding policy, the FCC has generally refused to get involved in private contractual disputes between companies it regulates. And as we discussed in a previous post, with respect to retransmission consent, the FCC does not have the authority under the Communications Act to force Cablevision and Fox to come to an agreement or to require interim carriage while the parties continue to negotiate.

In other words, the FCC’s hands are largely tied. FCC Chairman Genachowski as recently as last night issued a press release again urging the parties to reach a deal, but absent evidence of a lack of good faith negotiating tactics by the parties, there is little more that he or the FCC can do.

In order to help Cablevision’s subscribers figure out what to do, the FCC has issued a Consumer Advisory that explains what’s going on with the dispute and provides suggestions that may be at a Cablevision subscribers’ disposal. The Advisory is called “What Cablevision Subscribers Should Know About Receiving Fox-Owned Stations WNYW (NY), WWOR (NJ) & WTRF (PA)”, and the document provides an excellent informational resource for any pay-TV subscriber who might be affected by the expiration of a retransmission consent agreement. In my view, the Alert also strongly suggests that subscribers in such circumstances generally have a number of viable alternatives so that they can continue to view their favorite television stations.

The Alert makes it clear that Cablevision may carry the Fox station signals and their programming only if Cablevision and Fox reach a mutually acceptable agreement. Importantly, the Alert also makes clear that subscribers to Cablevision have a number of alternatives to allow them to continue to view the Fox stations and their programs by using other pay-TV providers such as AT&T, DIRECTV, DISH Network, RCN and Verizon FIOS, or viewing the stations over-the-air using a digital television set or an analog TV set connected to a digital-to-analog converter box (using an appropriate antenna in either case). In short, because a number of viewing options are available to the public, no one is prevented from continuing to watch the stations just because Cablevision and Fox have been unable to reach a mutual agreement on the terms of an extension or renewal of their carriage agreement.

The FCC’s Alert was issued in the midst of calls from Members of Congress, U.S. Senators and others that Cablevision and Fox be ordered to submit to binding arbitration. By the FCC’s action in publishing the Alert, the Commission signals that it does not have the authority either to command agreement between these private parties or to force them into arbitration. The Alert also supports the view that such action is not needed to protect the public because competition from other pay-TV providers, as well as free over-the-air access via indoor or outdoor antennae, assure the public of the continued availability of affected stations and their programming.