WASHINGTON—Cincinnati Bell has filed an application with the Federal Communications Commission asking the agency to review its decision to deny a petition by the telco, which does business under the brand altafiber, that claimed Nexstar violated “good faith” negotiating rules during a retransmission consent dispute involving Nexstar’s WDTN Dayton, Ohio station.
"Grounds for Commission review exist because the Bureau made determinations in conflict with existing Commission precedent, made erroneous findings with respect to material facts and created a material new policy that had not previously been resolved by the Commission,” the application said.
The original complaint referred to a 2025 retransmission consent and carriage dispute between Nexstar and altafiber that led the telco to drop both WDTN and Nexstar’s cable news channel NewsNation.
In an application that laid out a number of arguments supporting the complaint, the telco argued that the FCC’s decision to reject the complaint because it involved a “commonplace” dispute over rates was wrong. It also contended that Nexstar’s demands were “sufficiently outrageous,” for the agency to rule against Nexstar.
“As set forth in the record, Nexstar’s demand was anything but `commonplace,’ unless the Bureau considers imposing an incremental cost of more than $50 per Dayton subscriber `commonplace,’” the telco argued. “That cost is in addition to any retransmission consent fee and arises from delivery of Nexstar’s unpopular news channel, NewsNation, to subscribers outside the Dayton DMA. The cost is so high because 99% of altafiber’s subscribers are in the Cincinnati DMA where Nexstar owns no broadcast stations. Evaluating whether the demands of broadcasters are consistent with competitive marketplace considerations must necessarily be made in the market for which retransmission consent is being negotiated. Thus, these costs must be measured relative to the 1% of altafiber’s subscribers who would be able to receive the Dayton station. The Bureau had a duty to consider altafiber’s rebuttal evidence.”
“The Bureau also created a new policy, declaring that a broadcaster’s economic self-interest may take precedent over its duty to serve the public interest,” the application stated. “Even more significantly, it declared that the Commission lacked authority to enforce the public interest obligation in the context of retransmission consent negotiations, instead effectively delegating to altafiber the obligation to enforce Nexstar’s public interest obligations through the negotiating process.”
“The Bureau’s decision creates a dangerous and clear precedent that all broadcaster demands are presumptively consistent with competitive marketplace considerations, therefore no limits apply to the scale and scope of those demands,” the telco concluded. “Even if the demands violate the broadcaster’s public interest obligations, in light of the Bureau’s policy declaration, the Commission is now powerless to enforce those obligations. The Bureau’s decision permits broadcasters to withhold their signals until their demands are met without fear of any enforcement action. Whether the signal remains blacked out or the MVPD capitulates and access becomes unaffordable, foreclosed access harms many consumers who rely on MVPDs to receive local broadcast television.”
The application asked that the FCC “Remand Count I of the Complaint to the Bureau with instructions that: (i) Nexstar’s demand for carriage of an affiliated cable programming service outside of the DMA for which fully retransmission consent is sought is not presumptively consistent with competitive marketplace considerations; and (ii) Nexstar had the burden to establish that its demands were consistent with competitive marketplace considerations.”
It also asked the Commission to “Review and rescind the Bureau’s policy determination that: (i) a broadcaster can subordinate its obligation to serve the public interest to pursuit of `advanc[ing] its own economic self-interest when negotiating retransmission consent' and if it does, the Commission lacks authority to enforce the public interest obligations.”
The full application can be found here.
