FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,190
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not in the public interest. Second. TWC argues that LIN has failed to meet the standard for a failing
With respect to the first argument, TWC states that WLUK-TV obtains carriage through the
retransmission consent process and that WCWF(DT) has previously relied on its must-carry rights for
carriage. In its petition, TWC states that LIN, acting as the agent for ACME, has informed TWC that
both WLUK-TV and WCWF(DT) are now seeking compensation as part of a master retransmission
consent agreement. TWC argues that this is evidence of a broken and increasingly unworkable
retransmission consent process that permits broadcasters to raise the prices for carriage of their signals
and/or cause service interruptions, which can ultimately harm consumers. TWC contends that
broadcasters are able to engage in brinkmanship tactics vis-i-vis MPVDs4 because of their bargaining
leverage and that this leverage is facilitated by the Commission's various rules, including the network
non-duplication rule' and the syndicated exclusivity rule.6 According to TWC, when more than one
station is allowed to negotiate together, it permits a "weaker" station, like CW-affiliated WCWF(DT), to
extract higher retransmission consent fees than those to which it might otherwise be entitled, because the
stations could threaten to pull the signal of both the CW affiliate and the "stronger" station like Fox-
affiliated WLUK-TV from the MVPD's system.' Even the threat of such signal loss could cause
consumers to either switch providers or foreswear MVPD service altogether according to TWC, imposing
burdens on both consumers and MVPDs. TWC argues that granting the proposed assignment would
legitimize this potential conduct.8
TWC further argues that, if the Commission grants the application, it should impose conditions on the
grant. Specifically, TWC would have the Commission forbid the stations from withholding their signals
from an MVPD during the pendency of a retransmission consent dispute upon the expiration of an
existing agreement and, in the absence of a future retransmission consent agreement, would require the
stations to submit to a Commission-supervised dispute resolution process.
TWC challenges LIN's failing station waiver showing, and maintains that LIN has failed to demonstrate
that grant of such a waiver would be consistent with the standard set forth in the Commission's rules.
"Multichannel video program distributors ("MVPDs").
SSee 47 C.F.R. 76.92(a).
6 See 47 C.F.R. 76.101.
In support of its position, TWC cites to two studies filed in the current proceeding commenced in regard to its own
Petition for Rulemaking to Amend the Commission's Rules Governing Retransmission Consent, Petition for
Rulemaking, MB Docket No. 10-71 (filed Mar. 9, 2010) ("Retransmission Consent Petition"). Those studies are
William P. Rogerson. Joint Control or Ownership ofMlultiple Big 4 Broadcasters in the Same Market and Its Effect
on Retransmission Consent Fees, at 12, filed by the American Cable Association May 18, 2010, and Steven C.
Salop, et al., Economic Analysis of Broadcasters' Brinkmanship and Bargaining Advantages in Retransmission
Consent Negotiations, at 54, filed by TWC June 3, 2010.
S In its petition, TWC states that "an agreement to set retransmission consent prices on behalf of independently
owned stations in a single DMA would likely violate Section 1 of the Sherman Act." (emphasis added) Such a
statement is speculative on its face.
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/362/: accessed February 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.