TV Must-Carry/Retransmission Consent Elections Must Be Made This Year: Election Notification System Will Now Be All Electronic
In Report and Orders released in July of 2019 and February of 2020, the Federal Communications Commission ("FCC") has converted the system for television broadcast stations to notify multichannel video program distributors ("MVPDs"), of their election of must-carry or retransmission status from paper sent by certified mail to electronic notices posted on the FCC's website, with notices sent by email to MVPDs only when and if a station changes its election. MVPDs include cable television systems, Open Video Systems ("OVS"), and direct broadcast satellite systems ("DBS")
The new electronic system promises to be simpler and less expensive than the old paper system; but since the electronic system is new, both every TV broadcaster and every MVPD will have to upload some information this year, by specific deadlines, to preserve their legal rights. Keep in mind that must-carry/retransmission consent elections are made every three years, and the three-year cycle requires elections this year - which must be made on time, with no grace period, to avoid reverting to default status, which remains must-carry for cable TV/OVS and retransmission consent for commercial stations on DBS. Noncommercial stations, which are never entitled to choose retransmission consent, must still "request" carriage to take advantage of their DBS must-carry rights.
The two critical deadlines are July 31 and October 1, 2020. By July 31, both TV broadcasters and MVPDs must make sure that contact information on file with the FCC is up-to-date. By October 1, all TV stations must upload their must-carry/retransmission consent elections.
By July 31, 2020: All TV stations that have the right to elect must-carry status must upload both email and telephone contact information for carriage inquiries, which must appear both in the Licensing and Management System ("LMS") and in the station's online public inspection file ("OPIF"). It is not clear whether the FCC will migrate contact information from one system to the other, so broadcasters should verify that correct information is displayed in both online systems. The email and telephone information must be kept current, and stations must respond promptly to any inquiry from an MVPD received through either contact method.
By October 1, 2020: Full power and Class A commercial TV stations must upload their must-carry/retransmission consent elections to their OPIF. They no longer have to upload a separate election for each MVPD. One blanket election for all MVPDs is sufficient. If a station elects retransmission consent on some systems and must-carry on others, it must specify which is which in its online election notice. A one-time notice upload is all that these TV stations need to do. They are not required to send any notices directly to MVPDs.
Notices must be sent to MVPDs only when and if a station changes the status it elects. Status changes will continue to be permitted only once every three years; so the election made by October 1, 2020, will be effective January 1, 2021, and may not be changed until October 1, 2023, effective January 1, 2024. Change notices must include the station call letters; community of license; Designated Market Area ("DMA"); changes the station wants to make; to which communities the changes apply; and a telephone number, email address, and the name of a person to whom questions may be addressed. A copy of each status change notice must be emailed to ElectionNotices@FCC.gov and placed in the station's OPIF.
Full power noncommercial educational ("NCE") stations, because they do not have the option of electing retransmission consent, are not required to upload must-carry/retransmission consent elections for cable TV and OVS; but they must still upload their DBS carriage requests to their OPIF.
The situation is different for those low power television ("LPTV") stations and noncommercial educational ("NCE") translators that have must-carry rights but do not maintain an OPIF. By October 1, these stations must email their initial elections to all affected MVPDs, with a copy to ElectionNotices@fcc.gov. The emails must be sent to the contact point specified for each MVPD in the FCC's online Cable Operations and Licensing System ("COALS"). All stations with carriage rights but no OPIF must send an election notice this year, even if their prior election status is not being changed; but they will not have to send notices in future years unless they want to change their status.
All MVPDs must upload contact information (both email and telephone number) for election status inquiries to COALS by July 31. The FCC states that it will migrate this information to each MVPDs OPIF, but MVPDs should check their OPIF to make sure that accurate information is displayed. Each MVPD must specify one single point of contact for the entire company, not a separate contact for each system or DMA. (The FCC does not state whether MVPDs with legally separate operating subsidiaries may specify a separate contact for each subsidiary.) MVPDs must acknowledge receipt of any election change notice received from a TV station; if they do not respond, the TV station should inquire. If inquiries are not answered, notices sent to the posted email address with a copy to the FCC may be deemed valid and binding on the MVPD. The required simple acknowledgement of receipt will not impair an MPVDs ability to claim later that a notice was legally defective.
The home page of COALS already has a notice alerting MVPDs of the need to provide contact information. No notice yet appears on the LMS home page. Broadcasters should note that if their information in LMS is not correct, filing different information in an application will usually not result in an update of permanent contact information. An "Administrative Update" filing is available in LMS to make permanent updates. Stations should also note that MVPDs may use the contact information in LMS for the licensee and are not required to use separate contact information such as law firms and consultants; so it is important that LMS reflect "licensee" contact information that will reach a person who will pay attention to it.
Are you marking your calendar now to upload the required information on the deadline date or maybe the day before? That is not a very good idea. The FCC's online systems are known to slow down, and sometimes crash, on big filing deadline days. Remember that the must-carry/retransmission deadline is inflexible. Play it safe, and finish your uploading at least a week in advance of each deadline. Avoid suffering the slings and arrows of procrastination.