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Proposals Seek to End TV and Online Blackouts that Result from Retransmission Disputes

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TV and online blackouts like the one that affected thousands of Time Warner Cable subscribers when the cable company and CBS fought over retransmission fees could become a thing of the past, if Washington has its way.

Three bills that seek to update existing television broadcasting laws were introduced in the House late last week, and the Energy and Commerce Committee quickly approved one of the proposals. The approved bill was produced by the chairman of the subcommittee that oversees broadcasting and it contains a provision to prevent cable providers from blocking online video transmissions of non-affiliated producers.

The anti-blocking provision started out as the “Video CHOICE (Consumers Have Options In Choosing Entertainment) Act,” a bill that was introduced by House Communications and Technology Subcommittee Ranking Member Anna Eshoo (D-Calif.) and Rep. Zoe Lofgren (D-Calif.), who is a member of the Judiciary Committee.

However, while Lofgren is a sponsor of the proposal, Eshoo has been the catalyst behind the Video CHOICE Act, which has been added as an amendment to the larger bill—the “Federal Communications Commission Process Reform Act” (H.R. 3675)—which was introduced by Communications and Technology Subcommittee Chairman Greg Walden (R-Ore.). The FCC reform bill is among the latest legislative effort in an initiative by House Republicans to update the Communications Act of 1934 (P.L. 73-416).

On Dec. 3, Walden and House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) announced that they were undertaking a “multi-year effort to examine our nation’s communications laws and update them for the Internet era.” Walden’s bill directs the FCC to change some of its procedures on how it produces rules, conducts meetings and develops reports.

Eshoo’s bill seeks to prevent television broadcast blackouts—including online blackouts—that are the result of retransmission disputes “between television broadcast stations and multichannel video programming distributors.” It directs the FCC to produce a rule saying “the blocking of online content owned by or affiliated with a television broadcast station (or a person who owns or controls, is owned or controlled by, or is under common ownership or control with such station) constitutes a failure to negotiate in good faith under section 325 of the Communications Act.”

The bill seeks to amend the Communications Act by adding a provision to that legislation enabling the FCC to require that content be carried by the multichannel video programming distributor “pending the conclusion of a new agreement” by the distributor and the broadcast station.

“My bill would put an end to broadcast television blackouts and ensure consumers aren’t held hostage by a dispute they have no control over,” Eshoo said in a statement.

In addition, “internet users and television customers should not be held hostage when business negotiation disputes arise between cable and content providers,” Lofgren says. “It’s unfair to subject consumers to service blackouts or blocked online content,” she said. “This bill offers the basic consumer protections and choices they should receive in television and online services,” she added.

The bipartisan collaboration was praised by Chairman Upton, who said the agreement by Walden and Eshoo “is the culmination of months of work by members and staff to find common ground for an approach that will make the FCC a stronger, more accountable agency.”

While the full committee approved Walden’s bill, Reps. Steve Scalise (R-La.) and Cory Gardner (R-Colo.) introduced the “Next Generation Television Marketplace Act” (H.R. 3720), a video reform bill that would repeal “outdated laws” including compulsory copyright licenses, eliminate various mandates on private sector companies and consumers, and removes certain FCC broadcast and media ownership rules, the lawmakers say in a statement.

“While the compulsory licenses of ’76 and ’88, and the ’92 Cable Act may have made sense years ago, competition from new players in the video marketplace have rendered these laws obsolete,” Scalise said. According to the bill’s summary, it would:

  • Repeal those provisions of the Communications Act that mandate the carriage and purchase of certain broadcast signals by cable operators, satellite providers and their customers.
  • Repeal the Communications Act’s “retransmission consent” provisions and the Copyright Act’s “compulsory license” provisions, thereby allowing negotiations for the carriage of broadcast stations to take place in the same deregulated environment as negotiations for carriage of non-broadcast channels such as Discovery, Food Network and AMC.
  • Repeal ownership limitations imposed on local media operators, allowing businesses to evolve and adapt to today’s dynamic communications market.

“Consumers increasingly demand a customized viewing experience, in a world in which laws and regulations don’t restrict their ability to watch what they want, where they want, and at a price that best fits their budgets,” Scalise said. “These commonsense, private sector decisions should be left to the creators of content and those that distribute it, not the whims of the moment from Congress or the FCC.”

Scalise’s and Gardner’s bill was referred to the House Committees on Energy and Commerce and the Judiciary.

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