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McAdams On: Good Faith Negotiations
1/20/2012

PRECARIA: A retransmission dispute involving 8,200 rural Virginia cable subscribers is turning into the McCourt divorce without the L.A. Dodgers. The broadcaster’s attorneys are pressing the feds to enforce carriage under a “good-faith negotiation” codicil established 20 years ago when there may have been such a thing.

The likelihood of federal intervention backfiring is up there with primates scratching. The station would be better off using the money it’s spending on lawyers to fund a DirecTV marketing campaign, if over-the-air reception’s a no-go. It’s about 8,200 subscribers, for crying out loud. This is not a job for folks who aren’t much at good-faith negotiating among themselves. The whole good-faith legal scheme is intentionally vague to preclude government involvement. It basically says, “show up, on time, talk it out, sign something.”

Good faith already is under review, along with the rest of the rules governing retransmission consent. The Federal Communications Commission opened them up for feedback nearly a year ago, under pressure from the cable industry. Cable operators want the FCC to prohibit broadcasters from pulling TV station signals when negotiations stall. Broadcasters do not. Personally, I would like to see them settle disputes in blindfolded jujitsu matches held in a fire ring, but we can’t always get what we want.

How the FCC can enforce good-faith negotiations without unleashing a deluge of legal challenges that wend their to the U.S. Supreme Court is incomprehensible. The high court would then of course direct the FCC to take another crack at it, all of which would eat up another decade in which attorneys make out like bandits.

I have nothing against attorneys making out like bandits, but I’m beginning to notice that particular strategy doesn’t seem to resolve much of anything. Mr. and Mrs. McCourt reportedly forked over $20 million to their attorneys before more or less running out of steam. There again--jujitsu. I’m saying. It’s cheaper and more fun to watch. I would have put odds on Mrs. McCourt.

It’s hard to imagine how the FCC could further define “good-faith” negotiations without being ridiculous. The commission could create the Office of What Mom Said and require all meetings to be held in the presence of Sharon Osbourne, but then everyone would complain that it’s not J. Lo or Marge Simpson.

That the FCC might actually enforce good-faith negotiating is merely one of the dangers inherent in pushing the matter. The other involves a key components of the Virginia dispute--an out-of-market station. Current rules allow network-affiliated TV stations to assert exclusive carriage rights under a non-duplication rule. The commission is considering doing away with the non-dupe rule, meaning that if a TV station pulls its signal during a retransmission stalemate, the cable operator can just pick up the same affiliate from another market.

That’s not exactly the situation in Virginia, where the cable operator dropped the complainant in favor of the out-of-market station, but the situation certainly illustrates the power of eliminating non-dupe. Those 8,200 subscribers still get the same network shows, so unless they’re diehard fans of the dropped station’s local news, they’re not likely to be occupying the cable office.

The irony of retransmission disputes is how they continue unabated while a bigger threat looms--that of content anarchy. The U.S. Justice Department’s shutdown of Megaupload is just another garden hose opened up on a wildfire. That Anonymous responded by taking down a slew of federal and corporate websites only emphasizes the waning concept of ownership. While broadcasters and cable operators hiss at one another, pirates are circling. It’s only a matter of time before broadcast and cable infrastructures become their buffet du jour.

Maybe then I can finally watch “Chelsea, Lately.”

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