The Communications Act prohibits cable operators and other multichannel video programming distributors from retransmitting commercial television, low power television, and radio broadcast signals without first obtaining the broadcaster's consent. This permission is commonly referred to as "retransmission consent" and may involve some compensation from the cable operator to the broadcaster for the use of the signal.
Alternatively, local commercial and noncommercial television broadcast stations may require a cable operator serving the same market to carry their signals. This demand for carriage is commonly referred to as "must-carry." If a broadcast station asserts its must-carry rights, it cannot demand compensation from the cable operator for carriage of its signal. While retransmission consent and must-carry are distinct and function separately, they are related in that commercial broadcasters are required to choose once every three years, on a system-by-system basis, whether to obtain carriage or continue carriage by choosing between must carry and retransmission consent.
The following are some frequently asked questions and answers concerning the retransmission consent and must-carry provisions.
Q: Why must my cable system carry so many broadcast stations?
A: The Communications Act requires cable operators to set aside a specified portion of their channels for local commercial and non-commercial television stations. A cable operator with 12 or fewer channels must set aside up to three channels for local commercial television stations and at least one channel for a local noncommercial educational television broadcast station. Cable operators with more than 12 channels must set aside one third of their channel capacity for local commercial stations. Cable systems with between 13 and 36 channels must carry at least one, but need not carry more than three, local noncommercial educational television stations. Cable systems with more than 36 channels must carry all local noncommercial educational television stations requesting carriage with some exceptions for duplication of signals. Local television stations choosing the must-carry option and those that have negotiated agreements for retransmission with the cable system count towards this quota.
Q: What happens if a station chooses the must-carry option?
A: Must-carry stations are generally guaranteed carriage on the cable system on a preferred channel number. Commercial television stations have the option of electing must-carry status or retransmission consent status, whereas noncommercial television stations may only seek carriage on a must-carry basis.
Commercial stations that have elected must-carry status have the option of requesting carriage on the same channel number that they occupy over-the-air, on the channel number that the station occupied on July 19, 1985, or on the channel that the station occupied on January 1, 1992. However, television stations may also be carried on any channel that is mutually agreed upon by the station and the cable operator.
Q: Why does the channel line-up on my cable system keep changing?
A: There may be several reasons why changes occur in the cable system's channel line-up. First, a new television station may have entered your market. New television stations also have the right to elect between must-carry and retransmission consent within the initial months of operation. Second, a broadcast station or a cable system may have requested that the FCC include or exclude a particular broadcast station in your local market. If a decision is made by the FCC to include or exclude a television station from your cable system's market, the station may have to be added or deleted, respectively, from the cable system. Finally, cable channels such as C-SPAN may be deleted at the discretion of your cable operator to enable the operator to carry a different cable channel, or to carry a newly available broadcast station.
Q: Why is the retransmission consent requirement included in the law?
A: Since 1934, broadcast stations that use the programming of other broadcast stations have been required to obtain the prior consent of the originating station. This requirement was made applicable to cable systems due to concerns that not doing so would distort the video marketplace and threaten the future of free, over-the-air television broadcasting. By allowing broadcasters to receive compensation for carriage of their content, this law treats broadcasters the same as non-broadcast programming services carried by cable systems.
Q: What happens if my cable operator and a particular station do not reach a retransmission consent agreement?
A: Until the cable operator and the television station reach an agreement, the cable operator is prohibited from carrying that station's signal. Once an agreement is reached, the station can be put back on the cable system immediately. In addition, every three years broadcast stations must decide whether to demand carriage on local cable systems without receiving compensation or elect to negotiate a retransmission consent agreement. The initial election between must-carry or retransmission consent was made on June 17, 1993 and was effective on October 6, 1993. All subsequent elections occur every three years.
Q: What can the FCC do if a broadcaster and a cable operator fail to reach a retransmission consent agreement?
A: The Communications Act does not authorize the FCC to require cable operators to carry television broadcast stations (which elected retransmission consent). It does, however, require the parties to negotiate retransmission consent in good faith, and FCC rules implement this requirement. See https://www.fcc.gov/media/policy/retransmission-consent.
Q: Should I expect more changes in the programming on my cable system in the future?
A: Yes, the law provides that once every three years broadcast stations may elect between must-carry and retransmission consent. Fortunately, most broadcasters and cable operators agree that the least amount of change possible is the best, for both themselves and the subscribers. To the extent possible, it is anticipated that cable systems will keep changes to a minimum while they comply with any changes in election by broadcasters. The FCC's rules generally require cable operators to notify subscribers 30 days prior to any change in the broadcast stations they carry, or the channel number of the stations they carry. If the change occurs due to carriage negotiations that fail within the last 30 days of a contract, cable operators must notify subscribers as soon as possible. Therefore, your cable operator should keep you informed about any changes that will affect your cable service.
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Visit the Media Bureau website for more information, or call (202) 418-7200.