On September 14, 2017, the Media Bureau released a Public Notice extending the deadline by which multichannel video programming distributors (“MVPDs”), including cable operators, must electronically file Form 396-C, the FCC’s MVPD Equal Employment Opportunity (“EEO”) Program Annual Report.  Typically due by September 30^th of each year, the deadline for submission was extended this year to October 16, 2017 due to technical difficulties.  To file Form 396-C, login to the Media Bureau’s CDBS Electronic Filing System .

MVPDs that need extra time, particularly in hurricane-damaged areas, may email lewis.pulley@fcc.gov to further request a filing extension.   

The Public Notice also lists the MVPDs that have been randomly selected to file a Supplemental Investigation Sheet (“SIS”) along with their Form 396-C.  For this year’s filing, SIS filers must:

• Include one job description for employees in the category “Sales Workers” category in Part I of the form.
• Answer questions 1, 4 and 7 in Part II of the form:
  • Describe the employment unit's efforts to comply with the outreach provisions of 47 C.F.R. Section 76.75(b).
  • Explain the employment unit's efforts to promote in a nondiscriminatory manner to positions of greater responsibility.
  • Describe the level of responsibility of each level of the employment unit's management with respect to application and enforcement of its EEO policy and explain the procedure for review and control of managerial and supervisory performance.
• Attach, as Part III, a copy of the unit’s EEO public file report created in 2017 covering the previous 12 months. 

If you have any questions about EEO compliance, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.

Preparing for Year-End Retransmission Consent Negotiations:  Bargaining in Good Faith 

            The next round of retransmission consent negotiations is just about upon us, as broadcasters must postmark their retransmission consent election letters by September 30^th.  Before you begin negotiations, there are FCC rules you should be familiar with, including the requirement that a broadcaster negotiate retransmission consent in good faith. 

            The FCC first issued regulations addressing retransmission consent negotiations following enactment of the 1999 Satellite Home Viewer Improvement Act, and amended these “good faith negotiation regulations” pursuant to the 2004 Satellite Home Viewer Extension and Reauthorization and again pursuant to the 2014 Satellite Television Extension Act Reauthorization.

The rules allow broadcasters to do the following based on competitive marketplace conditions:

• Ask for compensation above that agreed to with other MVPDs in the same market
• Ask for compensation that is different from the compensation offered by other broadcasters in the same market.
• Ask for terms and conditions different from that offered to other MVPDs in the same market.

The rules have also been interpreted to allow broadcasters to do the following without constituting a pro-se violation of the rules:

• Propose that carriage be conditioned on carriage of other programming.  
• Propose that carriage be conditioned on a broadcaster obtaining channel positioning or tier placement rights.
• Ask for compensation in the form of commitments to purchase advertising on the broadcast station or broadcast-affiliated media.

On the other hand, there are several examples of broadcaster bargaining positions that presumptively conflict with the good faith negotiation requirement.  These include:  

• Proposals that specifically foreclose carriage of other non-duplicative programming services. 
• Proposals involving compensation or carriage terms that result from an exercise of market power by a broadcast station the effect of which is to hinder significantly or foreclose MVPD competition. 
• Proposals that result from agreements not to compete or to fix prices. 
• Proposals for contract terms that would foreclose the filing of complaints with the Commission.   

The FCC has also concluded that the following broadcaster conduct violates the obligation to negotiate in good faith:

• Refusal to negotiate retransmission consent.
• Refusal to designate a representative with authority to make binding representations.
• Refusal to meet and negotiate at reasonable times and locations.
• Unreasonably delaying negotiations.
• Refusal to put forth more than a single, unilateral proposal.
• Failure to respond to a proposal from an MVPD, including the reasons for rejecting a proposal.
• Executing an agreement that prevents the broadcaster from entering into a retransmission consent agreement with any other MVPD.
• Refusal to execute an agreement that sets forth the full understanding of the parties.
• Two non-commonly owned top-four ranked stations in the same DMA jointly negotiating retransmission consent.

In addition, an MVPD may demonstrate, based on the totality of the circumstances of a particular retransmission consent negotiation, that the broadcaster breached its duty to negotiate in good faith.

If you have questions about the FCC’s good faith rules, or retransmission consent negotiations in general, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com or Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com.