Pay TV titan AT&T continues its scorched earth ways

Armstrong Williams | 8/29/2019, 2:45 p.m.
In early June 2019, in an opinion piece for the television industry trade magazine BROADCASTING & CABLE, I expressed my ...
Armstrong Williams

In early June 2019, in an opinion piece for the television industry trade magazine BROADCASTING & CABLE, I expressed my displeasure and befuddlement at AT&T/DirecTV discontinuing retransmission consent negotiations that had been underway for months with my Howard StirkHoldings’ stations. I thought the Pay TV titan was wrongfully (and selfishly) using its monopolistic and gatekeeping power against my local free-to-the-home TV stations. As one of the very few African American TV owners in the country, I also thought AT&T/DirecTV was impacting diversity by truncating my market access, limiting viewer choices, and trenching upon cherished First Amendment values which hold that more voices are better than fewer. I urged AT&T/DirecTV to return to negotiations.

To my chagrin, however, the response I and several other similarly situated small station operators who use a joint negotiating agent got was the filing of a complaint at the FCC by AT&T/DirecTV. The complaint did not claim that we had violated the FCC rule specifically governing joint negotiations. That rule (47 CFR § 76.65(b)(1)(viii)) prohibits only joint negotiations among independent broadcasters “in the same local market,” and none of the targeted stations share a local market. Moreover, many of the stations had used the same joint agent in successfully completing agreements with AT&T/DirecTV during the 2016 RTC negotiations round. Instead, the gravamen of AT&T/DirecTV’s complaint is that we are not negotiating in “good faith” by having a joint agent.

AT&T/DirecTV’s complaint is a naked effort to achieve through an adjudicatory proceeding the type of blanket prohibition on joint RTC negotiations that it has been unable to achieve through the FCC’s rulemaking process or its expensive and extensive lobbying efforts in Congress. Indeed, if AT&T/DirecTV truly believed that this group of small stations had violated their good faith obligation in renegotiating RTC agreements it would have brought its complaint following the exact same process in 2016. It did not, and it should not have done so in 2019.

To be sure, the FCC has considered rulemaking proposals—including in 2011 and 2015—that would have prohibited joint negotiations among broadcasters altogether. AT&T/DirecTV enthusiastically supported those proposals, but the FCC decided on a narrower approach and prohibited only joint negotiations among broadcasters in the same local market. Having failed twice to get its desired prohibition adopted by the FCC, AT&T/DirecTV cannot now reasonably argue that the prohibition exists nonetheless and using a joint negotiating agent violates the rule when it doesn’t.

In an effort to nevertheless claim that even if having a joint agent is not a per se violation of the rule, because AT&T/DirecTV also had a nondisclosure agreement in place with the joint negotiating agent in 2016, the “totality of the circumstances” establish a failure to negotiate in good faith. Hog wash! The 2016 NDA was in place when AT&T/DirecTV and many of the same parties involved now successfully completed their RTC negotiations. Clearly it was not an issue, then or now. In addition, throughout the 2019 RTC negotiations, AT&T/DirecTV was engaged in active negotiations with the same joint agent without issue. It wasn’t until AT&T/DirecTV started to pull out of its negotiations that it even raised the 2016 NDA as an issue, and even after filing its complaint AT&T/DirecTV has continued to acknowledge and engage with the joint agent for the involved stations.