BRADENTON, FLA. — Gray Television has moved forward with the submission to the FCC of a formal Good Faith Complaint against Frontier Communications in response to the MVPD’s failure to reach a new retransmission consent agreement tied to one of its legacy systems for an ABC affiliate serving Sarasota and Manatee Counties along Florida’s Gulf Coast, and two stations in South Carolina.
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As RBR+TVBR first reported Monday (12/21), WWSB-TV in Sarasota, which uses PSIP Channel 40, is digital channel 24, and is branded as “ABC7” due to its heritage channel position on local MVPDs, was blocked as of 7pm Friday (12/18) from some 50,000 Frontier subscribers across Sarasota and Manatee Counties.
In Gray’s view, Frontier Communications “abruptly notified” WWSB that the MVPD “opted to delete” the station from its lineup, “and instead carry an out of town station after the cable provider walked away from retransmission consent negotiations.”
There’s a whole lot more to the story.
First, the “out of town” station Gray reference is technically within the same DMA. Sarasota and Manatee Counties are ensconced within the vast Tampa-St. Petersburg DMA, which also includes Lakeland, Winter Haven and even Sebring. And, since a major multi-station affiliation swap on Dec. 12, 1994, The E.W. Scripps Co.‘s WFTS-28 in Tampa has been the primary ABC affiliate across the market.
Understanding WWSB’s tricky place in Tampa Bay TV history requires a brief look back at the Sarasota station’s October 1971 birth as WXLT-40. The main purpose of the station was to bring ABC programming to an area that had poor reception of Tampa’s predecessor to WTSP-10, which was the ABC affiliate primarily serving Hillsborough and Pinellas Counties.
With the 1994 affiliation swaps, WFTS-28 gave its FOX affiliation to WTVT-13 as it simultaneously gave its CBS affiliation to WTSP.
While similar multi-station affiliate swaps were seen in West Palm Beach, giving Scripps the ABC affiliation previously held by WPEC-12, and two affiliate swaps were seen in Miami since the mid-1980s, those markets didn’t have a station like WWSB in the mix.
In fact, few if any DMAs have dual Big Four affiliates. In Lincoln, Neb., KLKN-8 is an ABC affiliate owned by Standard Media that shares part of its DMA with Sinclair Broadcast Group’s KHGI-13, branded as “NTV.” In the Battle Creek-Kalamazoo-Grand Rapids, Mich., DMA, ABC is also split between Nexstar Media Group-owned WOTV-41 in Battle Creek and TEGNA-owned WZZM-13 in Grand Rapids.
WWSB today is owned by Gray Television, which obtained the station via its merger with Raycom Media. Raycom paid $82 million for WWSB in a deal consummated in summer 2016 with Calkins Media.
Under Gray, ABC7 has only strengthened its coverage of the “Suncoast,” eschewing Tampa and St. Petersburg in favor of Sarasota, Bradenton, Lakewood Ranch, Venice and much of Charlotte County, to the south.
RBR+TVBR also exclusively reported that the retransmission consent agreement impasse involves Gray’s NBC affiliate serving Myrtle Beach, S.C., WMBF-32, a station acquired in the Raycom Media merger; and WCSC-5, the CBS affiliate in Charleston, S.C.
However, a Gray representative said the number of impacted subscribers is “far smaller” than in Sarasota, Bradenton and Lakewood Ranch.
A LEGACY SERVICE, IN NEED OF AN ACCORD
The focal point of Gray’s complaint against Frontier focuses on the MVPD’s failure to reach a new retransmission consent agreement for its Frontier FiberOptic TV service, a.k.a. FiOS TV by Frontier.
Research conducted by RBR+TVBR confirmed that this is a “discontinued” service, with new customers in communities such as Lakewood Ranch, where rock and roll legend Mick Jagger just purchased a home, now being offered bundled DirecTV and AT&T TV NOW packages. Further, while Frontier has a legacy video services package tied to Dish, it is not tied to this dispute.
For Frontier FiberOptic TV subscribers, a revised channel lineup obtained by RBR+TVBR shows WWSB replaced on its channel position by WFTS, while WFTS has also retained its own dial position — effectively giving it two homes as a sign Frontier wants its customers to realize ABC programming is “still there.”
For local news, however, that’s not the case.
And, Gray is fighting Frontier by going to the FCC on Tuesday (12/22) with a 14-page complaint against the communications company, formally owned by Citizens Telecom Services Co.
The complaint opens with a retelling of the events that transpired on Dec. 18 in Florida and South Carolina, with Gray noting its “no-strings-attached” extension offer while claiming, “For weeks prior to the drop, Frontier gave the appearance of negotiating to extend its retransmission consent agreement with Gray to continue to retransmit the stations, yet as Frontier’s lead ‘negotiator’ candidly acknowledged less than an hour before that agreement expired, she had no authority to enter into an agreement on any of the terms she had been offering to Gray. In short, the negotiations were a sham.”
Gray did not reveal the name of the female negotiator representing Frontier.
The broadcast TV station owner continues, “As shown by documents available on Frontier’s own website, Frontier decided more than a month ago that it had no intention of extending its retransmission consent agreement with Gray. Rather than disclosing this plan to its subscribers or Gray, Frontier engaged in ‘Potemkin negotiations’ making offers that it would not accept for stations that it decided weeks ago it would drop. At the same time that Frontier was making fake offers to Gray, it was keeping its customers in the dark regarding its true intentions to drop all three stations as soon as its carriage agreement expired.”
Given these allegations, courtesy of Gray SVP/Government Relations & Distribution Robert J. Folliard and Assistant General Counsel Claire Magee Ferguson, believe “the Commission’s good faith rules and consumer notice rules demand more.”
The key issue: Frontier gave no warning to its subscribers that the channels were in danger of being dropped.
FRONTIER’S POSSIBLE FINANCIAL PENALTY
Should the Commission decide, as Gray asks, to impose the maximum penalty permitted under the Communications Act for “Good Faith” violations, the forfeiture handed to Frontier could be in the hundreds of thousands of dollars.
It depends, Gray says, “on how long Frontier had been leading Gray along and how long it has been misleading its customers.”
As such, a Notice of Apparent Liability for Forfeiture in the amount of $562,500 for good faith violations could be issued, Gray believes.
There’s more: Gray also contends that the FCC has every right to issue a separate forfeiture in the amount of $187,500 for failing to notify its Sarasota customers “of the impending loss of the access to the only network-affiliated station that provides news, community service, life-saving weather, and other critical information specifically for the Sarasota market.”
It is fact that WWSB is the only TV station dedicated to Sarasota. However, whether the FCC views Sarasota as a “market” is open to interpretation, given its status as part of the Tampa DMA.
The complaint offers additional details on how Gray saw the breakdown in negotiations with Frontier. It notes that on November 23, Frontier’s “long-time lead negotiator for retransmission consent agreements reached out to Gray asking that Gray provide a proposal to extend the parties’ existing retransmission consent agreement” for WWSB and the two South Carolina TV stations.
Gray explains, “Ordinarily, Gray already would have sent Frontier a proposal weeks earlier and been deep in renewal negotiations, but Gray was negotiating a master agreement with NCTC that would cover all of NCTC’s members, including, Gray believed, Frontier.”
However, Gray adds, “Frontier’s negotiator explained that Frontier did not intend to opt into the NCTC agreement but instead preferred to negotiate directly with Gray.”
Given the short time period between then and the Dec. 18 expiry date of the retransmission consent accord, Gray says it “immediately offered to extend the existing retransmission consent agreement until December 31.”
Frontier said no, but eight separate drafts were exchanged between Gray and Frontier after that initial decline — a sign, Gray says, that normal negotiations were taking place.
Then, at 4pm Eastern on Friday, Dec. 18, with one hour to go before the retrans agreement expired, Gray was informed “for the first time ever” that the three stations were being dropped.
“She represented that not only did Frontier’s management not accept Gray’s most recent offer, but, more importantly, Frontier’s management did not approve Frontier’s own latest offer, either,” Gray says. “In fact, Frontier’s negotiator informed Gray that she could not
enter into an agreement on any terms.”
When Gray pressed for an explanation, Frontier’s negotiator “did not say much,” Gray says, “outside of some vague concerns regarding payment on a ‘duplicate’ ABC affiliate in the Tampa DMA” — Scripps’ WFTS-28.
What about the Myrtle Beach and Charleston, S.C., stations, where Georgetown and Williamsburg County are impacted? “When asked about negotiating a rate for the South Carolina stations, unaffected by such ‘duplicate’ concerns, Frontier’s negotiator could not and did not answer for why it was no longer interested in discussing carriage of these stations,” Gray says. “When asked ‘if any proposal’ would be acceptable – for any of the three stations – Frontier simply said ‘no.’”
Ironically, WWSB VP/GM Jeff Benninghoff is a Frontier customer receiving Frontier FiberOptic TV services. In a declaration, he “does not recall receiving any customer notices or emails from Frontier regarding the loss of WWSB.”
What’s next? The Media Bureau could set up an informal call within days, to get their initial read on the petition and the reply.
The battle could be protruded.
Asked by RBR+TVBR for comment, Frontier VP/Corporate Communications and External Affairs Javier Mendoza said, “We disagree with the assertions made by Gray and will defend ourselves at the FCC. Frontier cannot comment further on pending regulatory matters.”
