Time Warner Cable Takes Its Fight With CBS to the FCC

The watchdog is powerless, though

Never mind that the Federal Communications Commission has repeatedly said it has at best limited authority, if not none, to intervene in retransmission disputes, but Time Warner Cable decided to try again.

In a filing made public Monday, Time Warner Cable lawyers offered "additional evidence" for what it called "the broken retransmission consent regime."

TWC is in a vicious retransmission fight with CBS. Since Aug. 2 at 5 p.m., CBS stations have been off the air on TWC cable systems in markets such as New York, Los Angeles and Dallas, affecting about 3.5 million TWC subscribers. CBS is also blocking TWC subscribers from accessing CBS Internet content.

"CBS' aggressive tactics not only are causing significant harm to TWC's subscribers, but also powerfully underscore the flaws of the retransmission consent regime," wrote Matthew Brill, the Latham & Watkins counsel for TWC.

Brill asked that the FCC address what he called coercive bundling practices. "The commission should clarify that 'good faith' negotiation requires broadcasters to offer stand-alone terms for retransmission consent and that such stand-alone terms cannot be 'sham' offers that make purchasing larger programming packages the only economical rational option," wrote Brill, who also requested the FCC adopt reforms to stop blackouts.

The cable company, which is a leading member of the American Television Alliance, also cranked up the public relations push in Washington. Other ATVA members issuing statements calling for retransmission reform include the American Cable Association and Public Knowledge.

The FCC proposed changes to its retransmission consent rules in 2011, but the changes only called for parties to negotiate in "good faith," stopping short of preventing blackouts by compelling carriage of media properties under dispute.

At this point, unless Congress acts and changes the FCC's authority in such cases, all the FCC can do is ask both parties to play nice.

"The commission is disappointed that the respective parties could not reach a retransmission agreement. Our primary concern remains with consumers and viewers in the affected markets. We urge all parties involved to resolve this situation as soon as possible," the FCC said in a statement.