Media Law Newsroom

Implementation of Section 207 of The Satellite Home Viewer Extension And Reauthorization Act 

In this Notice of Proposed Rulemaking (“Notice”) we seek comment on the implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”).  Section 207 extends Section 325(b)(3)(C) of the Communications Act until 2010 and amends that section to impose reciprocal good faith retransmission consent bargaining obligations on multichannel video programming distributors (“MVPDs”). 

This section alters the bargaining obligations created by the Satellite Home Viewer Improvement Act of 1999 (“SHVIA”) which imposed a good faith bargaining obligation only on broadcasters.   As discussed below, because the Commission has in place existing rules governing good faith retransmission consent negotiations and because Congress did not instruct us through the SHVERA to modify those rules in any substantive way, we tentatively conclude that the most faithful and expeditious implementation of the amendments contemplated in Section 207 of the SHVERA is to extend to MVPDs the existing good faith bargaining obligation imposed on broadcasters under our rules. 

 A. The Good Faith Provisions of SHVIA

Section 325(b)(3)(C) of the Communications Act, as enacted by the SHVIA, instructed the Commission to commence a rulemaking proceeding to revise the regulations by which television broadcast stations exercise their right to grant retransmission consent.   Specifically, that section required that the Commission, until January 1, 2006:

prohibit a television broadcast station that provides retransmission consent from engaging in exclusive contracts for carriage or failing to negotiate in good faith, and it shall not be a failure to negotiate in good faith if the television broadcast station 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.

The Commission issued a Notice of Proposed Rulemaking seeking comment on how best to implement the good faith and exclusivity provisions of the SHVIA.   After considering the comments received in response to the notice, the Commission adopted