Commentary: Hawaiian Telcom Likely Retrans Victor Over Nexstar At FCC

Jan 14, 2024

By Ted Hearn, Editor of Policyband

Washington, D.C., Jan. 14, 2024 – On Friday, Comcast won a TV station carriage dispute at the Federal Communications Commission.

In siding with Comcast, FCC Media Bureau Chief Holly Saurer likely handed victory to a second cable operator: Hawaiian Telcom. The Honolulu-based cable company last July filed a retransmission consent complaint against Nexstar with allegations identical to those lodged by Comcast.

The FCC ruled in favor of Comcast over WPIX licensee Mission Broadcasting, which allowed Nexstar Media Group to negotiate a new carriage deal with the cable company in the New York City market in late 2022. Nexstar effectively owns Mission, the FCC said.

Comcast’s complaint stated that Mission-Nexstar violated the duty to bargain in good-faith by insisting that Comcast not file an FCC complaint over their retransmission consent dispute. Comcast lost popular independent station WPIX for two weeks in December 2022.

The FCC agreed with Comcast and slapped Mission as WPIX’s licensee with a $150,000 fine. Mission can appeal the fine to the five FCC Commissioners.

A party’s ability to file a complaint, even after deals had been signed, is integral to a properly functioning good-faith requirement, the FCC said.

“Our rules permit the filing of complaints even after an agreement is signed precisely because the process can be corrupted without being totally derailed,” the FCC said.

Hawaiian Telcom filed its complaint after losing Nexstar’s local Fox affiliate, a MyNetwork TV station and three other channels in the Honolulu TV market. The blackout lasted almost three weeks.

Hawaiian Telcom is owned by altafiber in Cincinnati. Macquarie Infrastructure Partners acquired altafiber (formerly known as Cincinnati Bell) in September, 2021.

In its complaint, Hawaiian Telcom said Nexstar wanted the cable company “to waive its claims that Nexstar acted in bad faith, withdraw the initial complaint and waive the right to file future actions against Nexstar.”

Because Hawaiian Telcom’s complaint tracks so closely with Comcast’s allegations, Nexstar will likely have a difficult time escaping FCC adjudication at the bureau level without a fine for violating the good-faith requirement.

In its defense, Nexstar challenged the notion that seeking restrictions on the filing of complaints was out of the ordinary.

“The concept of releasing FCC-related claims or withdrawing FCC complaints is not novel,” Nexstar said in its answer to Hawaiian Telcom’s complaint. “Such releases are routinely included in clean slate language often insisted on by both broadcasters and [multichannel video programming distributors] in retransmission consent negotiations.”

Nexstar suggested that any dispute over the complaint language was effectively moot because it was removed from the final agreement.

“Once Nexstar became aware of [Hawaiian Telcom’s] firm opposition, it abandoned its release proposal and the renewal agreement was signed without it,” Nexstar said.

The FCC, in upholding Comcast’s complaint against WPIX, said the agency established decades ago that “proposals for contract terms that would foreclose the filing of complaints with the [FCC] … presumptively are not consistent with competitive marketplace considerations and the good faith negotiation requirement.”