• TV Station Reminder: Carriage Elections due Oct. 1
  • October 8, 2008 | Authors: Brendan Holland; David M. Silverman
  • Law Firm: Davis Wright Tremaine LLP - Washington Office
  • Every three years, commercial television stations must choose between retransmission consent and mandatory carriage, also known as must-carry status, for the carriage of their broadcast signal on cable and satellite systems in their market. The deadline for making this election for the upcoming three-year cycle is Oct. 1, 2008.

    This upcoming election will determine how television stations will be carried on cable and satellite systems in their markets for the next three-year period, which runs from Jan. 1, 2009, to Dec. 31, 2011. Accordingly, the choice between retransmission consent and must-carry status is important and carries significant business implications. If stations have not done so already, they should notify the cable and satellite operators in their area of their carriage election in writing by Oct. 1, as discussed further in this advisory.

    Your election's benefits and risks  

    As most stations are aware, either option—must-carry or retransmission consent—carries certain benefits and risks. For example, a station that elects must-carry status will ensure that it is carried for the next three-year cycle, assuming that the station otherwise complies with FCC rules, but it will not be compensated by the cable or satellite operator for the use of its broadcast signal. In contrast, electing carriage pursuant to a negotiated retransmission consent agreement allows the station to negotiate the terms of carriage with the cable or satellite operator. If the parties fail to reach an agreement, however, the station could end up not being carried during the three-year period.

    Furthermore, the ramifications of failing to make a timely carriage election are slightly different for satellite than cable. With respect to cable, if a station fails to make a timely election, it will default to mandatory carriage. For satellite, however, the default choice is retransmission consent, and the satellite provider is not required to carry a station that fails to make a timely election.

    In addition, if multiple cable operators are providing service to the same area, television stations must make the same carriage election for both providers. In other words, if two competing cable operators serve the same county or community within a station's market, the station must elect either retransmission consent or must-carry on both systems in that area. Stations are, however, permitted to elect one option for cable carriage and a different option for satellite carriage.

    Making the notification

    Once a broadcast station has made its carriage decision, it must notify the relevant local cable systems and satellite carriers in writing. On the cable side, the broadcast station should notify each cable system operating in the station's defined market. As for satellite carriage, the station should notify any satellite carrier that provides local-into-local service in the market.

    Details for the election letters include the following elements:

    • Election notifications must be made in writing and must be sent to the satellite or cable operator's principal place of business via certified mail, return receipt requested. The elections must be made by Oct. 1, 2008.
    • The broadcast station's written notification must include the following information:
      • The station's call sign;
      • The station's community of license;
      • The station's Nielsen Designated Market Area assignment;
      • Whether the station is electing mandatory carriage (i.e., must-carry) or retransmission consent status;
      • The name of the appropriate contact person at the station; and
      • The station's address for purposes of receiving official correspondence.
    • In addition, if the station chooses mandatory carriage, it must also note its channel positioning preference, normally either the station's over-the-air channel or the channel on which it has historically been carried on the system.
    • Alternatively, if the station chooses retransmission consent, the notification should include some acknowledgment of the station's willingness to negotiate terms with the cable/satellite operator.

    FCC rules require that, once carriage pursuant to retransmission consent has been elected by a broadcast station, the parties (the station and the cable system/satellite operator) are required to negotiate with each other in good faith. But, as noted above, the retransmission consent rules do not guarantee the broadcast station carriage on the cable/satellite system if negotiations do not result in an agreement.

    A television station asserting its right to carriage is required to bear the costs associated with delivering a good quality signal to the satellite carrier's designated local receive facility or to the cable operator's headend. Further, a carrier is not required to carry a television station that does not agree to be responsible for the costs of delivering a good quality signal to the receive facility.

    Finally, once the stations have sent their carriage elections, each station must also place copies of all of its election statements in the station's public inspection file.

    Notification to satellite carriers of early-termination analog service

    In addition to the carriage election, Oct. 1, 2008, is also the deadline by which television stations must notify satellite providers if the station intends to terminate analog service after Jan. 1, 2009, but before the official end of analog broadcasting on Feb. 17, 2009. Consistent with the FCC's rules, satellite providers will commence carriage of a station's digital signal upon termination of the analog signal if the station has notified the satellite provider by Oct, 1, 2008, that it intends to terminate analog early. Therefore, stations planning to terminate analog service during that time frame should send an additional notification, again by certified mail, return receipt requested, to inform the satellite provider that the station will cease analog broadcasting prior to Feb. 17, 2009, and on what day it intends to terminate.