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Reaching a “Retrans” Agreement Does Not Prevent FCC Action for Failing to Act in Good Faith



Last week, the FCC proposed a fine of $150,000 against a TV station for failing to negotiate in good faith with a cable system over retransmission consent. Significantly, the FCC proposed the fine even though the station and the cable system reached an agreement. The issue was whether a station could propose, as part of the negotiation, that the parties could not file a complaint with the Commission. The FCC’s Media Bureau stated:

 

“As noted, the Good Faith Order plainly states that “proposals for contract terms that would foreclose the filing of complaints with the Commission” are presumptively at odds with the good faith negotiation requirement, and the Commission cited no exception or qualifying language that would support interpreting this phrase more narrowly. Whether parties sometimes determine that withdrawing existing complaints is in their mutual best interest after a carriage agreement is reached is not relevant to the question of whether they engage in good faith during the negotiation process.”

 

This is a significant decision in that it will impact the substance of future retransmission consent negotiations.

 

You can access the Media Bureaus decision here.

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