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Hawaiian Telcom files complaint against Nexstar

The complaint submitted to the FCC says Nexstar is not negotiating in good faith toward a new carriage agreement for several stations.

The complaint submitted to the FCC says Nexstar is not negotiating in good faith toward a new carriage agreement for several stations.

The skyline of Honolulu, Hawaii. (Photo via Wikimedia Commons)
The skyline of Honolulu, Hawaii. (Photo via Wikimedia Commons)

A Hawaii-based provider of cable television service has filed a complaint with the Federal Communications Commission (FCC) accusing Nexstar Media Group after several stations were pulled from its platform last week.

In its submission to the FCC, Hawaiian Telcom says Nexstar has refused to engage in good faith negotiations for a new carriage agreement after three local broadcast channels and three national networks were dropped on June 30.

The affected stations include Honolulu Fox and CW affiliate KHON (Channel 2) and independent station KHII (Channel 9), along with the news upstart NewsNation. The CW is carried on a digital sub-channel of KHON, and two other digital networks — Grit and Rewind TV — were also removed.

In the complaint, Hawaiian Telcom says Nexstar refused a concession that would have allowed the cable operator to continue providing the channels for up to one week after its contract ended, and instead only agreed to “consecutive one-hour extensions totaling only two hours in length.”

“Nexstar’s failure to honor the terms and conditions of the expired retransmission consent agreement while negotiations were ongoing constitutes bad faith negotiating,” Mary Talbott, the chief legal officer for Hawaiian Telcom, wrote in the filing.

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The counter-offer by Nexstar came just a few minutes before Hawaiian Telcom’s contract to carry the stations was set to expire. When Hawaiian Telcom tried again to negotiate an extension, “Nexstar did not respond until a few minutes before that extension expired, forcing Hawaiian Telcom to take down the signals rather than risk continued delivery in violation of both the Communications Act and United States copyright law,” Talbott said.

Both sides continued to negotiate over a new contract, which Hawaiian Telcom has interpreted to mean that there was no impasse over a new contract. Hawaiian Telcom isn’t asking the FCC to force Nexstar to reach an agreement for continued carriage of the channels, but is instead requesting the agency find Nexstar’s unwillingness to offer it a reasonable extension while a new agreement is hammered out to constitute “an impermissible act of bad faith.”

“As an act of bad faith, expedited Commission action is critical to avoid harm to many Hawaiian Telcom’s cable subscribers — Nexstar’s viewers — who are unable to receive the Stations’ signals off-air due to topographic considerations,” Talbott affirmed.

As of Wednesday evening, Nexstar has not filed a response to Hawaiian Telcom’s complaint. The company’s top communications executive, Gary Weitman, typically does not return emails from The Desk seeking comment.

The complaint is the latest in a long string of legal challenges involving Nexstar and its handling of retransmission consent negotiations. Earlier this month, more than 160 local broadcast stations and NewsNation went dark on DirecTV and AT&T U-Verse after both sides failed to reach a new agreement.

Around the same time, DirecTV filed an informal objection with the FCC, challenging Nexstar’s control of dozens of stations that are technically licensed to two other companies, Mission Broadcasting and White Knight Broadcasting. Attorneys for DirecTV said Nexstar operates nearly all aspects of Mission and White Knight’s stations, which includes negotiating retransmission agreements on their behalf.

The objection restated many claims found in an antitrust lawsuit filed by DirecTV against Nexstar in March, which alleges the broadcaster’s operational control of Mission and White Knight stations makes it a de facto owner of those outlets. Federal law restricts any one broadcaster from owning stations that, as a whole, reaches more than 38 percent of the country; DirecTV alleges Nexstar reaches about 70 percent of Americans when the Mission and White Knight stations are included.

Nexstar says it complies with all federal laws and regulations.

Correction: An earlier version of this story erroneously named the complaining party as “Hawaiian Telecom.” The company is Hawaiian Telcom.

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About the Author:

Matthew Keys

Matthew Keys is a nationally-recognized, award-winning journalist who has covered the business of media, technology, radio and television for more than 10 years. He is the publisher of The Desk and contributes to Know Techie, Digital Content Next and StreamTV Insider. He previously worked for Thomson Reuters, the Walt Disney Company, McNaughton Newspapers and Tribune Broadcasting.
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