The Federal Communications Commission (FCC) this week said consumers need a centralized database with information about programming-related blackouts involving broadcasters and cable and satellite companies before they happen — and the agency feels cable and satellite companies are in the best position to provide this information.
In a notice of proposed rulemaking published on Thursday, the FCC said cable and satellite customers typically learn about programming-related disruptions shortly before the expiration of a carriage agreement between broadcasters and pay TV companies, but said there was no central database for viewers to learn about pay TV disruptions on a broader scale.
“Such information would increase transparency about the frequency and duration of blackouts and help consumers understand the extent to which blackouts might be a problem not just in their own locality but in other areas of the country as well,” the FCC wrote in the notice on Thursday.
The FCC said a central repository with information about past, current and potentially future blackouts would help viewers know which pay TV providers and broadcasters have “a stronger history of blackouts,” which might help them make better choices about which pay TV service to purchase.
If passed, cable and satellite companies would have to notify the FCC of programming disruptions that last more than 24 hours. The report would be due within 48 hours of that trigger, and companies would need to follow up with an additional report when and if the blackout ends.
The notice effectively cements an idea put forward by FCC Chairperson Jessica Rosenworcel back in October, which would require cable and satellite companies to provide advanced notice to the FCC of a programming blackout on their services.
Rosenworcel’s proposal also said cable and satellite companies should be forced to issue refunds to customers when they lose channels during blackouts. The notice of proposed rulemaking published on Thursday did not address that point.
Groups representing cable and satellite companies say the proposals are misguided and ineffective, because they do not get at the heart of the problem that causes blackouts in the first place: Broadcasters demanding more money for their channels, even though most of the programming a viewer wants to watch is available with an antenna or online.
“Every blackout — every single one — is caused by the same thing: Broadcasters want consumers to pay higher prices,” Cora Mandy, a spokesperson for the American Television Alliance (ATVA), told The Desk earlier this year. “We appreciate the Commission’s acknowledgement that blackouts are a problem. However, we’d like to see the focus on the broadcasters, who increased retransmission consent fees from $200 million in 2006 to $11.7 billion in 2019 — an unbelievable 5,359 percent – rather than just on the companies that are negotiating to keep prices down for their customers.”
Mandy said the ATVA wanted more opportunities to “advance proposals that ensure broadcasters carry out their public interest obligations so that blackouts can be avoided all together.”
On Thursday, the FCC signaled its willingness to help in that area: The agency cited data that showed programming-related blackouts have grown in frequency — in just one year, there were 18 blackouts that left 26.5 million pay TV customers unable to watch a total of 272 channels — which proves that it is a problem need addressing.
The FCC also said it constantly hears from members of Congress that the FCC should step in to end a programming blackout once it starts, but also complained that Congress “has not…authorized the Commission to require that parties resolve retransmission consent disputes with carriage agreements, or to force carriage in the absence of an agreement.”
In other words, while federal lawmakers may complain to the agency that their constituents are missing channels, Congress has yet to pass any meaningful reform that would give the agency ammunition to prevent those blackouts, or end them when they start.
Instead, the FCC is limited to ensuring that broadcasters negotiate with cable and satellite companies in “good faith” toward a new agreement that allows for carriage of local and national channels. The agency said few companies file complaints on this matter during a blackout, and even fewer make complaints before one starts.
Curiously, the FCC’s proposal — as written — would not impose any reporting requirement on broadcast companies, whose demands for more money trigger programming blackouts in the first place. The reason? The agency believes cable and satellite companies are already in a position where they know when a blackout might occur, as they are the ones who have to pull channels off their platforms when a disruption starts.
“Thus, as a practical matter, it is the [cable and satellite companies, or MVPDs] who [have] the most ready access to and first-hand knowledge of when and where a broadcast station blackout occurs and which subscribers are affected, thereby ensuring that the Commission would receive the most complete, accurate, and up-to-date information,” the FCC said on Thursday. “Further, as it is the MVPD subscribers who are directly impacted by these blackouts, we believe it makes the most sense for s to be responsible for reporting blackout information through the reporting portal. As a result, we tentatively conclude it would be least burdensome on MVPDs to report this information promptly and accurately to the Commission.”
But the FCC appeared willing to hear from those who believe broadcasters should have to notify the agency about programming blackouts, too. The notice of proposed rulemaking allows the FCC to receive public comment — from broadcasters, cable and satellite companies and ordinary citizens alike — and one area the FCC would like to hear about is “whether we should impose the reporting obligation solely on broadcasters or impose a joint blackout reporting requirement on both MVPDs and broadcasters.”
“Would adopting a broadcaster-only reporting requirement or imposing a joint reporting obligation on both MVPDs and broadcasters provide additional benefits to the public? Do broadcasters have access to different, additional, or more timely information about blackouts that would be beneficial for the public to see in real-time?” the FCC questioned. “If reporting obligations were the same for both parties, would the Commission need to address or attempt to resolve conflicting reports?”
The FCC said it also wanted to receive comment on the suggestion that broadcasters could voluntarily provide “additional information to supplement blackout notices submitted by MVPDs” if broadcasters believe notices provided by cable and satellite companies “contain inaccurate or incomplete information.”
