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Retrans reform and exclusivity rules top Wheeler’s media agenda

FCC Chairman Tom Wheeler

Forget a quiet August in Washington. Federal Communications Commission chairman Tom Wheeler circulated no less than five items to the other four commissioners, including the expected notice of proposed rule making to review how the commission will define “good faith” negotiations in retransmission consent negotiations and a order proposing to eliminate the broadcast exclusivity rules.

Wheeler announced the moves in a blog post, positioning the items as part of his policy to “ensure a more competitive video marketplace for American consumers.”

The items address highly contentious issues that have pit the broadcast and cable industries against each other for at least a decade, ever since broadcast stations have figured out how to make cable systems pay for the privilege of carrying their signals.

Wheeler is under a Congressionally-mandated Sept. 4 deadline to review the “totality of circumstances test” for good faith negotiations during retransmission consent negotiations.

Noting that sometimes retransmission negotiation lead to blackouts, Wheeler is proposing a two-part framework for evaluating when parties are acting in good faith: a list of good faith negotiation standards, and a means of looking at the totality of circumstances.

Under the satellite bill passed late last year, Congress also required the FCC to put in place a process to allow satellite TV to carry an in-state TV station even though that station is “out-of-market” to better serve the interests of the satellite subscriber.

It’s also no surprise that Wheeler decided to bend to the wishes cable companies and circulate an order to eliminate the network non-duplication and syndicated exclusivity rules, which backstopped the contractual protections that TV stations have for the content broadcast in a local market.

While broadcasters have argued that the exclusivity rules preserve localism, an important policy that both Congress and the FCC have supported, Wheeler called the rules “outdated.”

“In this item, the Commission takes its thumb off the scales and leaves the scope of such exclusivity to be decided by the parties, as we did in the Sports Blackout Order last year. In so doing, the Commission would take 50-year old rules off our books that have been rendered unnecessary by today’s marketplace,” Wheeler wrote.

Wheeler also circulated two other items, one modernizing contest disclosure rules, and the other to help revitalize the AM radio band.

The notice of proposed rule making for contest rules would allow broadcasters to post them online, an item requested by GOP commissioner Mike O’Rielly that has already received broad bipartisan support.