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VIDEO CONTENT: Acquisition of Broadcast Programming OPASTCO U WORKSHOP Winter Meeting Maui, Hawaii January 19, 2003 Howard S. Shapiro, Senior Counsel Bennet.

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Presentation on theme: "VIDEO CONTENT: Acquisition of Broadcast Programming OPASTCO U WORKSHOP Winter Meeting Maui, Hawaii January 19, 2003 Howard S. Shapiro, Senior Counsel Bennet."— Presentation transcript:

1 VIDEO CONTENT: Acquisition of Broadcast Programming OPASTCO U WORKSHOP Winter Meeting Maui, Hawaii January 19, 2003 Howard S. Shapiro, Senior Counsel Bennet & Bennet, PLLC www.bennetlaw.com

2 1972: FCC ADOPTS COMPREHENSIVE CABLE RULES  One Stated Goal --Protection of Local Broadcasting  Must Carry of Local Television Stations  Signal Importation Limits  Blackout Rules  Rules Triggered by Station Demand  No Retransmission Consent

3 www.bennetlaw.com 1976: STATUTORY COPYRIGHT LICENSE ESTABLISHED  Covers all Secondary Transmissions  Passive Carrier Exemption  Transmissions Must be Simultaneous  No Alteration/Commercial Substitution

4 www.bennetlaw.com 1976: STATUTORY COPYRIGHT LICENSE ESTABLISHED  Payment Based on System Size  Foreign Stations  Based on FCC Signal Carriage Rules  Different Definitions  Cable System  Network Station  Copyright Office Bias

5 www.bennetlaw.com 1980-1981: DISTANT SIGNAL AND SYNDEX RULES ABOLISHED  No Station Consent Needed  Copyright Office Adopts Punitive Rates

6 www.bennetlaw.com 1985-1987: MUST CARRY CHALLENGED  1985 Quincy Decision  FCC Adopts New Rules  1987 Century Decision 1988-1990: SYNDEX REIMPOSED

7 www.bennetlaw.com 1992 CABLE ACT  Establishes Current Must Carry/Retransmission Consent Regime  Constitutionality Upheld by Divided Supreme Court  Copyright Law Subsequently Amended  Different Rules For Commercial/Non-Commercial Stations

8 www.bennetlaw.com  Applies to Local Commercial Stations Only  Election Made by October 1 (limited exceptions)  New Stations  New Systems  Channel Dropped  Surrender of Analog Channel  Default Election is Must Carry  Uniform Election TRIENNIAL ELECTION

9 www.bennetlaw.com MUST CARRY  Request Not Necessary  Notification Requirements for New Systems  All Commercial Stations in DMA (subject to cap) and certain LPTV Stations  Noncommercial Requirements Depend on Channel Capacity  Exceptions  Duplication/Antileapfrogging  Poor Quality Signal  Copyright Indemnification

10 www.bennetlaw.com MANNER OF CARRIAGE  Primary Video/Audio & Program Related Material  Closed Captioning and EAS  Non-degradation  Channel Positioning  Deletion/Repositioning Notifications  Market Modifications  Cannot Accept Payment (other than Copyright)

11 www.bennetlaw.com RETRANSMISSION CONSENT  Applies to All MVPDs and All Broadcasters (LPTV)  No Consent = No Carriage  Must Be in Writing  Exceptions  Must Carry Stations (Cable/OVS)  Non-Commercial Stations  Certain Superstations  Network Signals to White Area HSDs  Master Antennas

12 www.bennetlaw.com RTC NEGOTIATIONS  Everything On the Table  Exclusive Agreements Prohibited Until 12/31/05  Duty to Bargain in Good Faith Until 12/31/05  Must Negotiate  Meet at Reasonable Times and Places/No Delays  Designate a Decision Maker  Can’t Offer Single Unilateral Proposal  Must Respond to Counterproposals and Give Reasons  Need Not Give Same Deal to Different MVPDs  Need Not Reach Agreement

13 www.bennetlaw.com RTC ISSUES  Unequal Bargaining Power  Network Consolidation  Regional/National Cable Consolidation  Joint Ventures and Sweetheart Deals  Cash Compensation/MFN  Channel Positioning  Dual Carriage/MFN  Technical Standards/Bandwidth and Bit Rates  HDTV  Full Line Forcing  Higher Rates for Affiliated Services  Confidentiality  Ad Avails

14 www.bennetlaw.com DIGITAL TRANSITION  Digital Tuner Phase-in 2004-2007  Transition Ends 2006 (just kidding)  Simulcasting Requirement Begins in 2003  Digital Rights Management/Copy Protection

15 www.bennetlaw.com DIGITAL MUST CARRY  No Dual Carriage  Broadcaster Elects Analog or Digital Retransmission  Primary Video = Single Stream (Broadcaster chooses)  Ancillary Services Not Entitled to Carriage  No General Guide Data (only program related)  Provide Equal Quality as For Any Digital Service  HDTV Must Be Provided in HDTV  Must be on Basic Tier Unless Subject to Effective Competition

16 www.bennetlaw.com DIGITAL RTC  Partial Carriage Permitted  Can Tie Consent for Analog to Carriage of Digital  NCEs Can Grant Exclusives Outside Must Carry Area

17 www.bennetlaw.com QUESTIONS ?

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