Matt Daneman

Broadcasters and the pay-TV industry continued to joust over program exclusivity rules, as blacked-out stations in 39 states in the country's largest retransmission blackout were turned back on Thursday (see 1508260049). The repeal of network nonduplication and syndicated program exclusivity rules is in the crosshairs of Chairman Tom Wheeler, who has called them "outdated" (see 1508180053).

Interim carriage could have been back in FCC consideration as it briefly faced the largest broadcast blackout in history, experts told us. That was averted Wednesday night when the FCC and both companies in a retransmission consent dispute said carriage would resume amid finalization of a new deal. A statement by Chairman Tom Wheeler earlier Wednesday indicated that, along with getting more directly involved in the loggerhead negotiations between Dish Network and Sinclair, the agency also might be willing to go beyond that.

Antiquated FCC regulations hurt the competitive landscape, pay TV and broadcasters agreed in comments on the video competition report, but diverged widely on which of the rules are "outdated" and to blame. The comment deadline in docket 15-158 was Friday, with replies due Sept. 21. Many of the comments involved a pair of matters currently before the FCC -- its possible rulemaking on retransmission consent practices (see 1508140031) and its consideration of stretching the definition of multichannel video programming distributor to incorporate some types of over-the-top (OTT) content providers (see 1506220023)

From banning forced bundling to moving toward substantially deregulating the video market, multichannel video programming distribution and broadband companies, industry groups and interested parties had a variety of recommendations for the FCC Friday. It was the first wave of submissions for the 17th video competition report (see 1507240047). The deadline in docket 15-158 was Friday, with replies due Sept. 21.

Satellite and pay-TV companies continue to urge protection of C-band satellite operations from small cell operations now approved to operate in the same part of the 3.5 GHz band. While opportunities for spectrum sharing are increasing, satellite operators need to make sure they can operate in the C-band with sufficient protected access, Rebecca Cowen-Hirsch, Inmarsat senior vice president-government strategy and policy, told us: "It's all about good neighbors and technical compatibility."

FCC Chairman Tom Wheeler's goal of eliminating exclusivity rules (see 1508120051) in the name of better balance in retransmission consent negotiations may not be much of a boon to multichannel video programming distributors, MVPD attorneys and a cable executive said in interviews this week. “Exclusivity is not the driver” in retransmission negotiations, BakerHostetler cable attorney Gary Lutzker told us. “Far from it." The network nonduplication and syndicated program exclusivity rules "are kind of a double-edged sword," said Cinnamon Mueller cable attorney Scott Friedman. While they give broadcasters the right to enforce contractual exclusivity in a market's geographical footprint, conceptually the elimination of those rules could mean broadcasters could enforce by contract exclusivity over a broader area, Friedman said. "I don't think that is going to happen, but there is a bit of uncertainty there."

That a high-profile broadcast blackout on DBS was narrowly averted during the pendency of a draft retransmission consent NPRM may mean the spat gets more than usual attention, both sides on the issue agreed in interviews Monday. It's an open question, though, whether that will translate into any changes in how the commission addresses retrans, stakeholders said. Dish Network complained Saturday to the FCC on Sinclair's bargaining tactics, then Sunday put the complaint on hold as the two companies continued both contract talks and carriage. The draft NPRM would spell out whether a variety of retrans practices might constitute either a per se violation of "good faith" negotiating or could be considered as part of a totality of circumstances test of good faith (see 1508140031).

A lengthy list of retransmission consent practices, from broadcasters ceding negotiating rights to tying arrangements, could be up for examination if FCC commissioners sign off on a draft NPRM circulated last week (see 1508120051), an informed person said.

Charter Communications likely has headed off many broadband-related merger conditions by addressing them early on, experts said. But multiple broadband and cable matters likely will be brought up by and before regulators as Charter seeks approval to buy Bright House Networks and Time Warner Cable, they said. Charter agreed "from the get-go” to some of the most obvious potential conditions -- net neutrality and discounted broadband offerings to low-income populations -- said Barry Orton, telecom professor at the University of Wisconsin-Madison. That, plus that Charter, TWC and BHN don't share a “bully" reputation with Comcast based on complaints about strong-arm tactics, indicates the deals could have a relatively easy time winning approval, especially compared with Comcast’s aborted attempt to buy TWC, industry officials said.

Hewlett-Packard and Intel are "illuminating the darkness" in their efforts to bring more racial and gender diversity to their workforces and leadership ranks, the Rev. Jesse Jackson told us Wednesday. Jackson's Rainbow PUSH Coalition has been campaigning for greater workforce diversity in the tech industry (see 1508110036). The group applauded new Intel data released Wednesday about its hiring efforts as well as HP's announcement of its post-split board.