Published on:

Retransmission Consent Reform – Where Does it Stand?

By John K. Hane

Spoiler alert: Tomorrow I’ll be participating in a webinar (with Tom Larsen of Mediacom and Sarah Barry and Robin Flynn of SNL Kagan) to discuss and debate whether the FCC will adopt new retransmission consent rules and whether rules are needed at all. If you want to be surprised at my comments, don’t read this post!

The debate so far has been characterized by a lot of rhetoric. True facts, when they are presented, usually lack context. For example, it is true that broadcast signal carriage rates are rising fast. But the multichannel pay providers attribute those rising rates to “greed”. It’s a safe bet that the real reasons for rising retransmission fees are more complex than that. There are plenty of greedy people in all sectors of for-profit commerce, but few have the ability to raise rates at will. Market forces have a way of curbing irrational demands.

What we have is a debate about whether the government should adopt new regulations governing private transactions that take place in the very complicated television distribution marketplace. Lost in the debate is any meaningful description of what that marketplace looks like today and how it came to this point. Tomorrow I’ll describe the marketplace and explain why it is permitting retransmission rates to rise. I doubt I’ll change anyone’s mind about whether retransmission rates should rise. But I hope an explanation of the market forces that are causing them to rise will nudge the debate in a more constructive direction.

And now for the spoilers. Is retransmission consent reform needed? As an advocate for broadcasters, I surely think not. But my many years of experience in both broadcast and multichannel pay television (I haven’t always been a lawyer) tell me the same thing. Rising rates reflect market forces adjusting compensation to better reflect relative value. Rates won’t rise at the current pace forever, and if they manage to exceed the underlying value of broadcast carriage rights, the market will drive those rates back down. Consumers aren’t hurt by rising retransmission rates. They are hurt when prices they pay for services are greater than the underlying value of the service. I can make a persuasive case that rising retransmission consent rates will, given time, result in lower cable and satellite bills.

Will the FCC adopt new rules curbing the flexibility of broadcasters in retransmission consent negotiations? The buzz in Washington is that it won’t. I don’t think the FCC would impose new rules even if it had the legal authority to do so. Many at the FCC understand the complexities of the television distribution market, and they understand that meddling in one small part of that market will inevitably have unintended consequences, harming consumers and competition in ways that would outweigh any hoped for benefits from new regulations.

If you’re interested in knowing more on this topic but can’t join the webinar tomorrow, please drop me an email and I’ll send a copy of my slides.