Goto Section: 76.64 | 76.66 | Table of Contents

FCC 76.65
Revised as of October 28, 2020
Goto Year:2020 | 2022
  §  76.65   Good faith and exclusive retransmission consent complaints.

   (a) Duty to negotiate in good faith. Television broadcast stations and
   multichannel video programming distributors shall negotiate in good
   faith the terms and conditions of retransmission consent agreements to
   fulfill the duties established by section 325(b)(3)(C) of the Act;
   provided, however, that it shall not be a failure to negotiate in good
   faith if:

   (1) The television broadcast station proposes or enters into
   retransmission consent agreements containing different terms and
   conditions, including price terms, with different multichannel video
   programming distributors if such different terms and conditions are
   based on competitive marketplace considerations; or

   (2) The multichannel video programming distributor enters into
   retransmission consent agreements containing different terms and
   conditions, including price terms, with different broadcast stations if
   such different terms and conditions are based on competitive
   marketplace considerations. If a television broadcast station or
   multichannel video programming distributor negotiates in accordance
   with the rules and procedures set forth in this section, failure to
   reach an agreement is not an indication of a failure to negotiate in
   good faith.

   (b) Good faith negotiation—(1) Standards. The following actions or
   practices violate a broadcast television station's or multichannel
   video programming distributor's (the “Negotiating Entity”) duty to
   negotiate retransmission consent agreements in good faith:

   (i) Refusal by a Negotiating Entity to negotiate retransmission
   consent;

   (ii) Refusal by a Negotiating Entity to designate a representative with
   authority to make binding representations on retransmission consent;

   (iii) Refusal by a Negotiating Entity to meet and negotiate
   retransmission consent at reasonable times and locations, or acting in
   a manner that unreasonably delays retransmission consent negotiations;

   (iv) Refusal by a Negotiating Entity to put forth more than a single,
   unilateral proposal;

   (v) Failure of a Negotiating Entity to respond to a retransmission
   consent proposal of the other party, including the reasons for the
   rejection of any such proposal;

   (vi) Execution by a Negotiating Entity of an agreement with any party,
   a term or condition of which, requires that such Negotiating Entity not
   enter into a retransmission consent agreement with any other television
   broadcast station or multichannel video programming distributor;

   (vii) Refusal by a Negotiating Entity to execute a written
   retransmission consent agreement that sets forth the full understanding
   of the television broadcast station and the multichannel video
   programming distributor; and

   (viii) Coordination of negotiations or negotiation on a joint basis by
   two or more television broadcast stations in the same local market to
   grant retransmission consent to a multichannel video programming
   distributor, unless such stations are directly or indirectly under
   common de jure control permitted under the regulations of the
   Commission.

   (ix) The imposition by a television broadcast station of limitations on
   the ability of a multichannel video programming distributor to carry
   into the local market of such station a television signal that has been
   deemed significantly viewed, within the meaning of § 76.54 of this part,
   or any successor regulation, or any other television broadcast signal
   such distributor is authorized to carry under 47 U.S.C. 338, 339, 340
   or 534, unless such stations are directly or indirectly under common de
   jure control permitted by the Commission.

   (2) Negotiation of retransmission consent between qualified
   multichannel video programming distributor buying groups and large
   station groups. (i) A multichannel video programming distributor may
   satisfy its obligation to negotiate in good faith for retransmission
   consent with a large station group by designating a qualified MVPD
   buying group to negotiate on its behalf, so long as the qualified MVPD
   buying group itself negotiates in good faith in accordance with this
   section.

   (ii) It is a violation of the obligation to negotiate in good faith for
   a qualified MVPD buying group to disclose the prices, terms, or
   conditions of an ongoing negotiation or the final terms of a
   negotiation to a member of the qualified MVPD buying group that is not
   intending, or is unlikely, to enter into the final terms negotiated by
   the qualified MVPD buying group.

   (iii) A large station group has an obligation to negotiate in good
   faith for retransmission consent with a qualified MVPD buying group.

   (A) “Qualified MVPD buying group” means an entity that, with respect to
   a negotiation with a large station group for retransmission consent—

   (1) Negotiates on behalf of two or more multichannel video programming
   distributors—

   (i) None of which is a multichannel video programming distributor that
   serves more than 500,000 subscribers nationally; and

   (ii) That do not collectively serve more than 25 percent of all
   households served by multichannel video programming distributors in any
   single local market in which the applicable large station group
   operates; and

   (2) Negotiates agreements for such retransmission consent—

   (i) That contain standardized contract provisions, including billing
   structures and technical quality standards, for each multichannel video
   programming distributor on behalf of which the entity negotiates; and

   (ii) Under which the entity assumes liability to remit to the
   applicable large station group all fees received from the multichannel
   video programming distributors on behalf of which the entity
   negotiates.

   (B) “Large station group” means a group of television broadcast
   stations that—

   (1) Are directly or indirectly under common de jure control permitted
   by the regulations of the Commission;

   (2) Generally negotiate agreements for retransmission consent under
   this section as a single entity; and

   (3) Include only television broadcast stations that collectively have a
   national audience reach of more than 20 percent;

   (3) Definitions. For purposes of this section and section 76.64 of this
   subpart, the following definitions apply:

   (i) “Local market” has the meaning given such term in 17 U.S.C. 122(j);
   and

   (ii) “Multichannel video programming distributor” has the meaning given
   such term in 47 U.S.C. 522.

   (4) Totality of the circumstances. In addition to the standards set
   forth in paragraphs (b)(1) and (2) of this section, a Negotiating
   Entity may demonstrate, based on the totality of the circumstances of a
   particular retransmission consent negotiation, that a television
   broadcast station or multichannel video programming distributor
   breached its duty to negotiate in good faith as set forth in paragraph
   (a) of this section.

   (c) Good faith negotiation and exclusivity complaints. Any television
   broadcast station or multichannel video programming distributor
   aggrieved by conduct that it believes constitutes a violation of the
   regulations set forth in this section or § 76.64(l) may commence an
   adjudicatory proceeding at the Commission to obtain enforcement of the
   rules through the filing of a complaint. The complaint shall be filed
   and responded to in accordance with the procedures specified in § 76.7.

   (d) Burden of proof. In any complaint proceeding brought under this
   section, the burden of proof as to the existence of a violation shall
   be on the complainant.

   (e) Time limit on filing of complaints. Any complaint filed pursuant to
   this subsection must be filed within one year of the date on which one
   of the following events occurs:

   (1) A complainant enters into a retransmission consent agreement with a
   television broadcast station or multichannel video programming
   distributor that the complainant alleges to violate one or more of the
   rules contained in this subpart; or

   (2) A television broadcast station or multichannel video programming
   distributor engages in retransmission consent negotiations with a
   complainant that the complainant alleges to violate one or more of the
   rules contained in this subpart, and such negotiation is unrelated to
   any existing contract between the complainant and the television
   broadcast station or multichannel video programming distributor; or

   (3) The complainant has notified the television broadcast station or
   multichannel video programming distributor that it intends to file a
   complaint with the Commission based on a request to negotiate
   retransmission consent that has been denied, unreasonably delayed, or
   unacknowledged in violation of one or more of the rules contained in
   this subpart.

   (f) Termination of rules. This section shall terminate at midnight on
   January 1, 2020, provided that if Congress further extends this date,
   the rules remain in effect until the statutory authorization expires.

   [ 70 FR 40224 , July 13, 2005, as amended at  74 FR 69286 , Dec. 31, 2009;
    79 FR 28630 , May 19, 2014;  80 FR 11330 , Mar. 3, 2015;  85 FR 36801 , June
   18, 2020]

   


Goto Section: 76.64 | 76.66

Goto Year: 2020 | 2022
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