FCC watchers and D.C. pundits are buzzing with the possibility that more, not less, Washington regulation over virtual MVPDs such as Hulu + Live TV — which will soon merge with Fubo in a multi-million deal announced early Monday — is on the way.
It all stems from the adoption of a Report and Order by the Commission on December 31 that puts into motion certain reporting requirements for commercial broadcast TV stations in the event of a retransmission consent agreement impasse, resulting in a “blackout” of over-the-air stations on a cable TV services provider.
Released late Friday by the Commission after it adopted the R&O right before the end of 2024, all broadcast TV stations in the U.S. are now required to report any loss of availability to MVPD consumers lasting over 24 hours that occur when carriage agreement negotiations collapse and a fresh agreement can’t be put into place.
As the FCC sees it, a “light-touch reporting framework” has been put in place, using a buzz phrase popularized by prior FCC Chairman Ajit Pai that incoming Chairman Brendan Carr will most certainly embrace as the agency’s leader.
Public reporting will see documentation of the beginning and resolution of any qualifying blackout, as well as the confidential submission of information about the number of subscribers affected.
As the Commission sees it, “This reporting will fill a basic information gap in the Commission’s awareness of such blackouts, ensuring that the Commission receives prompt and accurate information about critical multichannel video programming distributor (MVPD) service disruptions involving broadcast stations when they occur.”
In addition, the FCC believes the creation of a centralized, Commission-hosted database of basic blackout information “will increase transparency around the frequency and duration of broadcast station blackouts for the public.”
To view the Report & Order in its entirety, please click here.
The R&O was unanimously approved by the Commission, despite reply comments from the NTCA that argued that the reporting requirements would offer no public benefit because the database would be under-inclusive. The NAB and the Affiliates Associations questioned whether consumers would use the Commission’s database. Even if they did, they claimed “the information they would find there would be incomplete and misleading” because it would only contain information about retransmission consent-related blackouts on MVPD platforms.
Thus, vMVPD “blackouts” would not be included in this database.
Should they? Footnote No. 48 offers a clue.
“Although some virtual MVPDs (vMVPDs) carry broadcast stations, the issue of whether section 325 and our retransmission consent regulations apply to vMVPDs remains an open question. Therefore we decline to include vMVPDs as part of this rulemaking.”
The statement that vMVPD retransmission consent “remains an open question” is what got tongues wagging around a very snowy Washington on Monday, even as attention was turned to Congress, where the Electoral College votes securing the return of President Trump to the White House were certified by Congress.
Covering the R&O for his Policyband newsletter, Ted Hearn, who represented ACA Connects as its VP of Communications under former head Matthew Polka, points to how soon-to-depart FCC Chairwoman Jessica Rosenworcel has turned her attention to Congress when it comes to how to classify vMVPDs when it comes to retransmission consent.
Now, some are reading into Footnote No. 48 as a sign the Carr Commission could make a tweak to the current rules, adding vMVPDs instead of doing away with retrans altogether.
