http://www.multichannel.com/news/policy/nab-gao-study-supports-keeping-exclusivity-rules/393787
NAB: GAO Study Supports Keeping Exclusivity Rules
Broadcasters are pulling out all the stops in their effort to prevent the FCC
from eliminating the syndicated exclusivity and network non-duplication rules.
In a filing at the FCC Tuesday (Sept. 15), the National Association of
Broadcasters reminded the commission of a GAO report from earlier this year
concluding that there could be harmful consequences if the FCC removed the
rules without also eliminating the compulsory license that excludes cable and
satellite operators from having to negotiate for the content within broadcast
signals (the retrans negotiation is for the value of the TV signal as a
one-stop delivery system for news and entertainment programming).
The NAB pointed to an April GAO report that concluded the exclusivity rules are
part of "a broader broadcasting industry legal and regulatory framework,
including must-carry, retransmission consent and compulsory copyrights."
The GAO drew no conclusions about consequences brought up by both cable and
broadcasters for the report, saying that [t]he effects of eliminating the
exclusivity rules are uncertain, because the outcome depends on whether related
laws and rules are changed and how industry participants respond."
But one result of eliminating the rules, the GAO said, could be to reduce
station investment in content, including local news -- something broadcasters
told the GAO could happen. It added that if copyright law was amended in
"certain ways" -- one way would be to eliminate the compulsory license -- that
would allow the NFL or broadcast networks, for example, to ensure that retrans
agreements excluded distant signal importation of certain content -- unless of
course the FCC decided in its separate retrans good-faith review that such
exclusivity was not in good faith.
The NAB said the GAO report provided "yet more evidence that the Commission
should decline to act in a piecemeal fashion by eliminating its program
exclusivity rules applicable to cable operators, but should defer to Congress,
the only entity capable of addressing the entire framework as a whole."
While FCC chairman Tom Wheeler has proposed eliminating the rules, circulating
an order to that effect last month, one commissioner aide has said a yes vote
is not a slam dunk, while another said they were still taking meetings.
"We urge the commission to reject the current proposal to eliminate its
exclusivity rules applicable to cable operators while they still have the right
under their compulsory license to import programming contained in distant
broadcast signals at government-set, below market rates," the NAB said.
Since Congress could likely not take such action on the compulsory license for
months, if it succeeded at all, the FCC would likely have to hold off on
approving the order until sometime next year. Then again, the chairman might
not get the three votes he needs.
The GAO has also been asked by Congress to study the compulsory license and
report by June 4, 2016, on that and any related administrative actions, which
would arguably include syndex and network non-duplication.
