NBC/Comcast Seen Presaging Other Affiliation Changes
As WHDH Boston fights Comcast-NBCUniversal over the network's move of NBC affiliation to an owned-and-operated station (see 1603110031), broadcast industry experts tell us more such affiliation shifts could be coming if and when there's a successful conclusion to the broadcast incentive auction. Meanwhile, many say the political pressure that was put on Comcast in the fight likely had scant effect.
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The channel repacking that's expected after the auction could see more broadcasters buying a competitor's affiliation and putting it on an adjacent channel -- a move that's a relative rarity now and only in very small markets, said one broadcast lawyer with network and affiliate experience. As the auction comes to a successful close, a couple of hundred stations nationwide potentially could leave the air and some broadcast network signals could end up as a digital subchannel on another broadcast channel in a given market, said one broadcast industry official. WHDH meantime is appealing U.S. District Judge Richard Stearns' May decision tossing out its lawsuit against Comcast (see 1606150049), with its brief due Jan. 6.
Comcast came under political pressure from lawmakers over the WHDH affiliation move (see 1612060077 and 1612090057). Comcast last week laid out its plans to Sen. Ed Markey, D-Mass., about how it plans to cover the Boston area after WHDH. A lawyer with cable clients said that kind of political pressure doesn't cause a company to reverse its stance, though it may help push parties to at least resume negotiations or re-examine the basis for a decision. It also can result in the multichannel video programming distributor calling the lawmaker to explain the issues and what the other side is leaving out, the lawyer said. It's also uncommon to pursue an affiliation issue in court, since relief is often an urgent matter and court proceedings can take a long time, the lawyer said. Echoed Mediacom Group Senior Vice President-Legal and Public Affairs Thomas Larsen, letters from politicians never speed up negotiations.
Comcast doesn't want any enemies, but letter-writers like Markey and Rep. Joseph Kennedy, D-Mass., are Democrats and aren't going to be able to inflict serious pain on the MVPD with the incoming GOP control of Congress and the White House, said one lawyer with broadcast and cable clients. A commercial party will always look to exert political pressure if it can, but WHDH already lost its fight in U.S. District Court and likely has no leg to stand on, the lawyer said, saying if the shift were a violation of the consent decree, more action would be taken. Even if the NBCU actions were a consent decree violation, the FCC almost surely won't do anything until the transition is complete, the lawyer said. Comcast, WHDH owner Sunbeam and its outside counsel and the FCC didn't comment.
Affiliation changes are relatively rare, experts said. The WHDH situation is getting particular political attention because it's a well-known station with long-standing affiliation, said the cable lawyer.
When affiliation changes do happen, it's usually because of dissatisfaction with an affiliate for some reason -- for example if they too often pre-empt network programming for local programming, said a broadcast lawyer with network and affiliate experience. The last major round of affiliation changes was in the early 2000s when Fox bought or cut deals to take a number of affiliates from major networks, the lawyer said. Loss of affiliation can mean a major financial hit for a broadcast station since network programming increased the value of adjacent time the broadcaster owns, the broadcast attorney said.
The FCC doesn't have a leg for getting involved in affiliation fights and traditionally has stayed out of them, and surely won't be getting more involved in the near future with the incoming Republican-controlled FCC being unlikely to increase regulatory oversight, experts said. No rules require broadcasters to affiliate with a station in any particular market, the cable lawyer said. Affiliations are purely contractual, and the agency almost never gets involved, the broadcast lawyer said.
The Massachusetts Broadcasters Association "appreciates Senator Markey’s long support of broadcast media and understand the concerns of the Senator and his constituents," MBA Executive Director Jordan Walton emailed us, saying the organization isn't taking a position on the affiliation fight. "We certainly hope the situation works out for viewers and both stations in the long run.