Last week, the FCC voted to force pay TV providers to bargain retransmission consent agreements "in good faith" with broadcasters and expanded the definition of reciprocal good faith bargaining to all broadcasters and MVPDs regardless of the DMA in which they are located. Previously, the Satellite Home Viewer Improvement Act of 1999 imposed the good faith bargaining obligation on broadcasters, but not MVPDs.
The FCC also concluded that the reciprocal good faith bargaining obligation applies to retransmission consent negotiations between all broadcasters and MVPDs regardless of the DMA in which they are located.
The revised Section 76.65 of the FCC Rules includes some examples that are not considered to be a failure to negotiate in good faith. These include cases where: "(1) the television broadcast station proposes or enters into retransmission consent agreements containing different terms and conditions, including price terms, with different multichannel video programming distributors if such different terms and conditions are based on competitive marketplace considerations; or (2) the multichannel video programming distributor enters into retransmission consent agreements containing different terms and conditions, including price terms, with different broadcast stations if such different terms and conditions are based on competitive marketplace considerations."
Refusal to negotiate retransmission consent by either party violates the requirements for good faith negotiations, as does refusing to meet and negotiate retransmission consent or to designate a representative with authority to make binding representations on retransmission consent. Agreements that limit the ability of a negotiating party to enter into a retransmission consent agreement with any other MPVD or broadcast station are also considered to violate good faith bargaining obligations.
For the complete list of actions that violate or comply with the good faith bargaining obligation, refer to the Report and Order (FCC 05-119).
