WASHINGTON—The Modern Television Act of 2021, from House Republican Whip Steve Scalise (R-La.) and Rep. Anna Eshoo (D-Calif.), has officially been introduced, which at its heart looks to repeal regulations that would help prevent future station blackouts as part of retransmission negotiations.

According to the press release announcing the legislation, there were 327 station blackouts in 2020, removing channels from viewers as part of negotiations between MVPDs and broadcasters.

“Until we modernize outdated video laws, blackouts will continue to happen while market prices surge,” said Rep. Eshoo. “I’m proud to partner with Congressman Scalise to introduce this legislation to protect consumers, encourage market competition, lower prices, and bring an end to broadcast blackouts.”

The Modern Television Act of 2021 would repeal regulations from the 1992 Cable Act. The new bill proposes the following:

• Requiring MVPDs carry a broadcast signal while the parties continue negotiations for up to 60 days, with parties being retroactively paid for their content aired during that time. 
• Repeal transmission consent, compulsory copyright licenses and other outdated statutory provisions and regulations to allow free-market contract negotiations to happen under traditional copyright law. 
• Establishing an optional mechanism for the FCC to compel parties to seek “baseball-style” binding arbitration through a neutral third-party arbitrator following an extended impasse or finding of bad faith. Would protect against blackouts and pays copyright holders for their content during the arbitration process. 
• Preempt federal, state and local authority to regulate rates of cable services. 
• Requiring the Government Accountability Office to report specific metrics about the impact of this Act on consumer and the marketplace every two years. If a net negative is determined, the FCC must recommend policy changes to Congress. 
• Ensuring consumers have access to local programming by retaining the ability of a local TV broadcast station to require carriage on cable and satellite providers in their local market. 

“Congress needs to finally modernize the outdated 1992 video laws that no longer fit today’s technology. Our bill brings back basic copyright protection laws, so that everyone gets paid for their products, and consumers get to choose whatever they want to buy, wherever they want to buy it and watch whatever they want on any device they choose,” said Scalise.

The American Television Alliance, which has been highly critical when blackouts occur, praised the proposed legislation.

“After broadcasters set records for retransmission blackouts during a public health crisis over the last year, it is more urgent than ever this legislation be advanced,” said Jessica Kendust, an ATVA spokesperson. “We commend Representatives Eshoo and Scalise for their foresight and understanding that now is the time to update this nearly 30-year-old system for the benefit of American television consumers.”

“This bill has the right approach: Instead of continuing to tweak the current cumbersome and duplicative system of compulsory copyright licenses, with broadcaster retransmission consent negotiations layered on top, it would shift the video marketplace to one based purely on privately-negotiated copyright,” added John Bergmayer, legal director, Public Knowledge. “At the same time, it would eliminate a number of protectionist rules that have outlived any usefulness they may once have had.”

NAB, on the other hand, has come out in opposition against the bill, saying that it would eliminate the legal underpinnings of the local broadcast system.

“NAB continues to oppose legislation that undermines the foundation of broadcast television,” said Ann Marie Cumming, NAB senior vice president of Communications, in a statement. “Every day, Americans rely on local broadcast TV stations for news, weather, investigative journalism, public affairs programming, sports, popular entertainment and emergency information—including critical lifeline coverage of the COVID-19 pandemic during the past year. We strongly urge policymakers to work with broadcasters on preserving and strengthening a local broadcasting system that provides immeasurable service to our communities.”

WASHINGTON—Congress has heard enough complaints from consumers about TV station blackouts from pay-TV operators and now two representatives have introduced a bipartisan bill to overhaul the 25+ year-old retransmission rules.

The 1992 Cable Act, which put into place such rules as must carry and retransmission consent have become “outdated,” according to Reps. Steve Scalise (R-LA) and Anna Eshoo (D-CA), who this week took to YouTube to introduce the “Modern Television Act of 2019.”

Among other things, while it would not repeal must carry, the act would replace retransmission consent with “traditional free market negotiations to happen under ‘traditional copyright law.’” It would also require pay-TV providers to continue to provide broadcast signals for up to 60 days after retrans agreements expired while the two parties held negotiations. It would also allow the FCC to bring a neutral third party into negotiations.

This year has seen a record number of station blackouts according to the ATVA, a coalition of consumer groups, cable, satellite and telephone companies and independent programmers. The most prominent blackouts are occuring now as AT&T has removed Nexstar and CBS-owned stations from DirecTV over disagreements on retrans. Rep. Eshoo, who TV Technology readers may remember from her advocacy for loudness rules earlier this decade, decried the current situation, likening viewers to “hostages.”

"These outdated laws aren’t just bad for the market, they’re hurting consumers,” she said. “When blackouts take place, consumers are held hostage during the disputes between the broadcasters and the cable company. This year, there have been over 200 blackouts. That’s more than double the number from a few years prior. In fact, my constituents are facing major broadcast blackouts right now. These outdated regulations end up hurting consumers in their wallets."

"It’s the end of the road for the outdated 1992 video laws,” said Republican Minority Whip Scalise. “It’s time for Congress to finally modernize these laws. Our bill goes back to basic copyright protection, so that everyone gets paid for their product, and consumers get to choose whatever they want to buy, wherever they want to buy it, whatever device they want to watch their video on."

ACA Connects, which represents small to mid-market pay-TV operators, strongly advocated the proposals.

“I applaud Reps. Scalise and Eshoo for introducing the Modern Television Act. It represents a serious and long-overdue attempt to address the increasing dysfunction in the television marketplace," said ACA Connects President Matthew Polka. "For too long, broadcasters’ greed and ability to leverage their government-granted protections have led to skyrocketing prices and broadcaster blackouts. And for too long, ACA Connects’ smaller cable system operator members have borne the brunt of broadcasters’ misconduct. The Modern Television Act promises real change and real relief for consumers."

“If the Modern Television Act were law today, tens of thousands of Americans—including many customers of ACA Connects members—would never have lost their broadcast signals. And the endless cycle of broadcaster price increases might finally stop, or at least slow down," he said.

“I am especially pleased to see that the Modern Television Act contains provisions that, at long last, would extend the FCC’s good faith rules to negotiations involving buying groups used by small cable system operators, such as the National Cable Television Cooperative."

NAB was not so thrilled.

“NAB respectfully opposes legislation introduced by Reps. Eshoo and Scalise that we believe would undermine America’s world leadership in free and local broadcasting,” the association said Thursday. “We look forward to working with Reps. Eshoo and Scalise—and other policymakers—as we strive to preserve a local broadcasting system that is the envy of the world. In an era of social media dysfunction and the loss of daily newspapers, local television remains an indispensable force for good by exposing corruption at City Hall, keeping communities safe during natural disasters and delivering the most popular source of free entertainment and sports programming.”

House Majority Whip Steve Scalise (R-La.) Monday (July 23) launched another effort at massive communications deregulation, one he has been pushing for most of a decade, so far without success.

Scalise has reintroduced a discussion draft of his Next Generation Television Marketplace Act, which repeals must-carry and retransmission consent rules and the compulsory license. That is the license that allows broadcasters to include nonlocal programming in their retrans deals without having to secure individual rights from national network and syndication rightsholders.

The bill would also "eliminate the government's role in defining the scope of programming exclusivity" and "codify the repeal of certain limitations imposed on local broadcasters that prevent them from adapting to today’s dynamic communications marketplace."

Like previous incarnations, the bill also includes eliminating the network nonduplication and syndicated exclusivity rules, as well as broadcast ownership limits.

[Read: Retransmission Overhaul Launched]

“Innovation tends to follow the path of least government resistance. For proof, look no further than the growth of online streaming services that are operating in a completely free market, while competing against other platforms that are regulated as if they were still monopolies from the 1990s," said Scalise. "My legislation will level the playing field so consumers can benefit from even more freedom in the video marketplace.”

Broadcasters wouldn't mind getting rid of more ownership restrictions, but getting rid of must-carry and retrans and network nondupe and exclusivity rules are nonstarters. The National Association of Broadcasters will strongly oppose the bill, according to an NAB spokesperson, as it has previous versions.

“Today’s media marketplace has never been more robust, with consumer access to broadcast programming on more platforms than at any time in history," said NAB EVP Dennis Wharton. "Unfortunately, the Next Generation Television Marketplace Act would undermine this great American success story. It would severely damage broadcasters’ ability to serve local communities and hurt tens of millions of viewers who rely every day on broadcast TV for news, entertainment and lifeline weather coverage."

But the bill has plenty of supporters.

"As the former president of an association of local TV stations, former president of network distribution for Fox, former president of the ABC Television Network, former executive VP of The Walt Disney Company and a former law professor, I write to strongly support House Majority Whip Steve Scalise’s Bill, The Next Generation Television Act," blogged Preston Padden, whose resume includes expert witness on the Hill for why the compulsory license should go.

"His Bill would repeal a steaming pile of outdated, conflicting and unnecessary government interventions into the market for distributing television programming," said Padden.

"The bill would at long last eliminate or substantially curtail legacy video regulations based on perceptions of the market in the early 1990s, or even earlier," said Free State Foundation President Randolph May. "If adopted, the NextGen TV Act would bolster free market competition and free speech in the video services market."

“The American Television Alliance, a voice for the TV viewer, commends Congressman Steve Scalise for his thoughtful leadership to reform and update America’s broken and outdated video laws," said the American Television Alliance, which has been advocating for major retrans reform in the face of what it says are skyrocketing broadcaster fee asks and blackouts. “The Next Generation Television Marketplace Act will jump-start and elevate a long-overdue conversation about modernizing the rules of the road for how Americans access and pay for video content. The legislation is forward-thinking, free-market oriented and pro-consumer."

"ACA applauds Rep. Scalise for introducing legislation designed to overhaul archaic media laws and policies," said ACA President Matt Polka. "The Scalise bill, to its credit, will prompt lawmakers and stakeholders to begin important conversations that should result in legislation next year that will truly serve the public interest."

“The regulations used to govern the video marketplace are out of date and no longer reflect the options and ways consumers obtain and view their content," said Verizon SVP Robert Fisher. "Congress should consider the changing technology enabled by a growing internet ecosystem as they create a new video marketplace framework....This legislation will begin the conversation to modernize our nation’s video policies as the marketplace responds to rapidly changing consumer demands.”

“Dish commends Rep. Scalise for his continued leadership on behalf of consumers," said Dish SVP Jeff Blum. "The broken retransmission consent regime is in dire need of comprehensive reform, and customers have been left paying the price through broadcaster blackouts and skyrocketing retransmission consent rates.”

“NTCA appreciates Congressman Scalise’s willingness to take on the difficult issue of updating video policy by introducing this legislation," said Shirley Bloomfield, CEO of NTCA–The Rural Broadband Association. "As consumer consumption of video continues to evolve, it is essential to examine video marketplace failures and consider updates to existing laws and regulations, especially in rural areas where many residents can’t receive broadcast signals. We look forward to engaging in this important discussion with Congress, and ultimately to the passage of legislation that will address the critical shortcomings in the existing rules governing this marketplace.”

“Charter applauds Majority Whip Steve Scalise for reintroducing the Next Generation Television Marketplace Act," the company said in a statement. "Congressman Scalise is rightly reexamining a broken system that has resulted in retransmission consent fees rising exponentially over the last decade. We look forward to working with him and his colleagues in Congress to reform the outdated rules and better protect consumers.”