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Bills Introduced in Congress to Revise Cable and DBS Signal Carriage Rules

Seth A. Davidson
Arthur H. Harding
Edwards Wildman Palmer LLP - Washington Office

December 19, 2013

Previously published on December 2013

A pair of influential members of the House of Representatives (Rep. Steve Scalise (R-LA) and Rep. Anna Eshoo (D-CA)) have introduced end-of-session bills that would change the rules governing the carriage of broadcast signals by cable and DBS providers. While the bills differ in their approach, they may serve as a starting point for legislative action to update the 1992 Cable Act as early as next year.

Scalise Bill (H.R. 3720). With Rep. Cory Gardner (R-CO) joining as a co-sponsor, Rep. Scalise has re-introduced the “Next Generation Television Act,” a broadly deregulatory bill that Rep. Scalise first introduced at the end of 2011. (See Dec. 19, 2011 client advisory). The key provisions of the new version of the bill (which makes only minor changes to the 2011 version) include the following:

  • Must Carry/Retransmission Consent: Repeals must carry and retransmission consent provisions of Communications Act that apply to carriage of commercial broadcast television signals, leaving in place non-commercial signal must carry rules. Also preempts federal, state, or local authorities from regulating carriage of commercial broadcast signals.

  • Compulsory Copyright License: Repeals the local and distant compulsory licenses for cable and DBS, carving out an exemption from copyright infringement liability for carriage of local non-commercial stations and certain grandfathered distant non-commercial stations.

  • Territorial Exclusivity and Blackout Rules: Directs the FCC to repeal the network non-duplication, syndicated exclusivity, and sports blackout rules and to eliminate restrictions on the geographic area within which a broadcaster can obtain exclusivity.

  • Rate Regulation/Must Buy Tier: Preempts regulation of cable or DBS rates by any level of government and eliminates “must buy” basic tier requirement.

  • Ownership: Directs FCC to eliminate the local television multiple ownership limits, the radio-television cross-ownership restriction, and the newspaper-broadcast cross-ownership ban. Also repeals the restrictions on cable/MMDS and cable/SMATV cross-ownership.

  • Leased Access: Repeals the requirement that cable systems offer leased access at regulated rates.

Eshoo Bill (H.R.3719). Rep. Eshoo, who is the ranking Democrat on the House Energy & Commerce Committee’s Communications and Technology Subcommittee, has formally introduced the “Video CHOICE (‘Consumers Have Options in Choosing Entertainment’) Act of 2013” with Rep. Zoe Lofgren (D-CA) as a co-sponsor. Rep. Eshoo released a virtually identical “discussion draft” of this legislation in September (See Sept. 11, 2013 client advisory). The Eshoo bill takes a more targeted, regulatory approach than the Scalise bill, and includes the following key provisions:

  • Preventing Retransmission Consent Blackouts: The bill gives the FCC authority to order a station to allow an MVPD to carry the station’s signal pending resolution of an “impasse” in negotiations that results in the expiration of the MVPD’s carriage rights.

  • Tying Retransmission Consent to Carriage of Affiliated Programming: Prohibits stations that elect retransmission consent from conditioning grant of such consent on carriage of any other programming (broadcast or non-broadcast) affiliated with station (with grandfathering of existing carriage agreements).

  • Blocking Online Content During Retransmission Consent Negotiations: Directs the FCC to conduct a rulemaking to determine whether it is a violation of the “good faith” negotiation requirement for a station to block access to its online content during negotiations for retransmission consent or after the parties reach an impasse resulting in the expiration of an existing carriage agreement.

  • Modification of Must Buy and Buy Through Requirements: Eliminates the requirement that stations electing retransmission consent must be carried on the “basic” tier of service that all cable subscribers must receive as a condition of access to other services. Also requires that all retransmission consent signals be packaged together on a separate, optional tier. Both the “basic” tier and the “retransmission consent” tier would continue to be subject to rate regulation. Moreover, a cable operator would be prohibited from requiring a subscriber to “buy through” any tier other than the basic tier as a condition of access to either the retransmission consent tier or to channels offered on a per channel or per program basis.

  • Sports Programming Costs: Directs the FCC to conduct and submit to Congress the results of an annual study of the costs paid by MVPDs for carriage of regional and national television sports networks in the top 20 regional sports markets.

Analysis. Certain provisions of the Satellite Television Extension and Localism Act of 2010 (“STELA”), including provisions granting a distant signal compulsory license to DBS operators and establishing the “good faith” retransmission consent negotiation requirement, are scheduled to expire at the end of 2014. In the past, legislation to extend these provisions has usually become a vehicle for other changes in the Communications Act and/or Copyright Act provisions governing carriage of broadcast signals by cable and DBS. Rep. Greg Walden (R-FL), chairman of the House Energy & Commerce Committee’s Communications and Technology Committee, and Rep. Fred Upton (R-MI), chairman of the full committee, have expressed a preference for a “clean” extension, with a more broad based review of the Communications Act held over to 2015 (or beyond). However, the introduction of the Scalise and Eshoo bills could create pressure on the Committee leadership to go beyond a simple clean extension and consider targeted changes to the signal carriage requirements. At very least, it suggests that discussion of these issues will continue next year and could create pressure for a short-term STELA extension that would increase the likelihood that consideration of broader changes are not put off indefinitely.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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