FCC Plans to Give TV Stations a Pass on Reporting Retrans Blackouts
By Ted Hearn, Editor of Policyband
Washington, D.C., Dec. 22, 2023 – The Federal Communications Commission says it needs better data on instances where TV stations go dark on cable and satellite TV systems.
A key question: Who needs to provide the blackout data – the pay-TV companies or the TV stations?
In a document posted yesterday on its website, the FCC said it would put the burden on cable and satellite TV, not TV stations, claiming it was the most practical option.
In explaining its approach, the FCC said cable and satellite TV operators have the responsibility “rather than the broadcaster, to stop retransmitting the broadcast station’s signal, and thereby remove the programming that is subject to blackout from their [pay-TV] platforms upon the expiration of a carriage agreement.”
The agency explained its plan was also needed because cable and satellite TV have “the most ready access to and first-hand knowledge of when and where a broadcast station blackout occurs and which subscribers are affected, thereby ensuring that the [FCC] would receive the most complete, accurate, and up-to-date information.”
The FCC under Chair Jessica Rosenworcel is collecting the data in response to concerns from some on Capitol Hill and the public about the persistent increase in TV signal blackouts.
“In 2019 alone, just 18 retransmission consent impasses resulted in 272 station blackouts that spanned 205 markets and affected 26.5 million subscribers,” the FCC said.
Citing S&P Capital IQ, the FCC said these blackouts “on average remained in effect for 171 days – higher than the 98-day average in 2018, 33 days in 2017 and 52 days in 2016. Some MVPD subscribers in over half of television markets continue to experience blackouts every year.”
The FCC is moving forward with a rulemaking that would require cable and satellite TV to report TV station blackouts that last more than 24 hours. They would have 48 hours to file the first blackout report with the FCC and two business days to report that the parties had reached an agreement.
The FCC plans to host and administer an online portal to receive blackouts reports. The information would be available to the public, except for “sensitive information regarding subscribers.”
The FCC said it needs to be the public source of the most reliable data on TV signals blackouts. Private sector sources, while helpful, do not provide timely and comprehensive data that meet the FCC’s needs, the agency said.
“Neither the [FCC] nor the public has a systematic method for learning of significant [pay-TV] service disruptions involving broadcast programming,” the FCC said. “The [FCC] usually learns of broadcast station blackouts on [pay-TV] platforms through reports of disputes in the media or informal communication with staff. This ad hoc process does not provide the [FCC], Congress, or the public with timely or specific information regarding service disruptions.
Republican FCC Commissioner Nathan Simington issued a statement expressing concern about the FCC’s choice of regulatory authority.
“I approve this item, though I am skeptical of its tentative conclusion that the [FCC] has authority to enact the proposed reporting requirements under Section 632(b) of the [Cable] Act. While there are other valid sources of authority for the reporting requirements this item proposes, Section 632(b) is a considerably narrower provision than recent [FCC] action suggests,” Simington said.
Simington was evidently referring to the fact that the FCC intends to rely on Section 632(b) – which addresses customer service requirements for cable operators – to ban cable and satellite TV operators from collecting early termination fees from subscribers or from denying them some billing credit fees. Simington strongly dissented from these proposals last week.