On December 21, 2023, the FCC released a Notice of Proposed Rulemaking (“NPRM”) proposing new reporting requirements for multichannel video programming distributors (“MVPDs”). The amendments to the FCC’s rules, if enacted, would give MVPDs 48 hours to notify the FCC when a blackout of 24 hours or more of a broadcast television station, or stations, occurs on a video programming service due to a breakdown in retransmission consent negotiations. The new rules would also require that MVPDs notify the FCC within two business days of a blackout’s resolution. The FCC has invited public comment on its proposals, and commentators have 30 days from the NPRM’s publication in the Federal Register to do so.
The newly proposed rules come on the heels of an increasing number and duration of broadcast station blackouts on MVPD platforms across the country over the past decade. Under existing FCC rules, broadcast television stations and MVPDs are required to negotiate retransmission consent agreements in good faith, and if a party to a retransmission consent negotiation believes the other party has not acted in good faith, it may file a good faith complaint with the FCC. The FCC historically has relied, at least in part, on good faith complaints to ascertain the market landscape for blackouts. However, in the NPRM, the FCC found that “given that many broadcast station blackouts on MVPD platforms occur without either party filing a complaint with the Commission, we cannot rely on good faith complaints to inform us when a deal impasse has resulted in a blackout, nor can we consider such complaints an accurate sampling of significant service disruptions.” The FCC also depends on media reports or informal communications with staff to learn of breakdowns in negotiations and resultant blackouts. Given the secondhand nature of these information sources and the accompanying uncertainties of what is essentially an ad hoc process, the FCC posits that the new notification requirements are in the public interest.
Specifically, MVPDs would be required to notify the FCC both at the start and conclusion of a qualifying broadcast station blackout (i.e., one that exceeds 24 hours in length) through a new online reporting portal. The new online portal would be modeled after the FCC’s Network Outage Reporting System (“NORS”) and “would use an electronic template to promote the ease of reporting and encryption technology to ensure the security of the information.”
If a qualifying blackout occurs, MVPDs would have 48 hours to provide basic blackout information to the FCC (the “Initial Blackout Notification”). The NPRM proposes that MVPDs provide the following information in the Initial Blackout Notification: (i) the name of the reporting entity; (ii) the station or stations no longer being retransmitted, including network affiliation(s), if any, of each affected primary and multicast stream; (iii) the name of the broadcast station group, if any, that owns the station(s); (iv) the Designated Market Areas in which affected subscribers reside; and (v) the date and time of the initial interruption to programming. Subscriber information would be provided confidentially through the new online portal, without the need for a separate filing.
Once a blackout is resolved, MVPDs would then have two business days to publicly identify the date retransmission resumed and provide updated information via another notification (the “Final Blackout Notification”). The amended data contained in this notification would be public. The FCC specifically requests comment on the information disclosures required, the proposed two-business-day reporting window, and the public treatment of the disclosures.
If you have any questions or would like assistance with preparing comments to the NPRM, please contact your FHH attorney. Happy New Year from FHH!