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Nexstar asks FCC to stop Time Warner from re-broadcasting their stations to outside markets
(WKTV) - The company that owns television stations WBRE and WUTR is asking the Federal Communications Commission to stop Time Warner Cable from continuing to re-transmit their stations to television audiences far beyond their markets, citing violation of FCC laws.
In an emergency petition for injunction prohibiting carriage in violation of the FCC's rules, Nexstar Broadcasting has requested the FCC prohibit Time Warner Cable from carrying WBRE on its cable systems serving communities in Delaware, Otsego, Herkimer and Oneida Counties, which are in the designated market area of the Time Warner Utica System, and from carrying WUTR on its cable systems serving communities in Essex, Franklin and Clinton Counties, which are located in Burlington, Vermont-Plattsburgh, the designated market area of the Time Warner Plattsburgh System.
According to the petition, the general managers of WBRE and WFXV were not notified until the evening of December 15, 2010 at 6 p.m. That Time Warner would be adding WBRE to its Channel lineup in Utica and WUTR to its channel lineup on the Plattsburgh System at midnight that night. Nexstar claims that the last minute notice left them with no time or opportunity to object.
The company alleges that not only did Time Warner fail to lawfully notify the company of the change, but that their research indicates that Time Warner did not appear to have notified its customers or local franchising authorities about the addition.
Nexstar says that it believes Time Warner's decision to retransmit WBRE on their Utica System was part of its negotiating strategy to gain leverage in its retransmission consent disputes with Smith Media, the company that owns WKTV in Utica.
"Time Warner is apparently gambling that its customers will be happy as long as they continue to receive network programming and, therefore, is importing a non-local station (WBRE) over 130 miles to Utica and a non-local station (WUTR) over 140 miles to Plattsburgh," the petition states.
In the paperwork filed with the FCC by Nexstar alleges that Time Warner's use of WBRE and WUTR in "its game of retransmission content" without providing the required 30 days notice is "a flagrant violation" of the Communications Act and the Commission's rules, and "a disservice to its Utica and Plattsburgh subscribers, who are without a local news source in this dangerous weather time of year."
The Communications Act and the FCC's rules impose precise notice on requirements on cable operators, stating that "a cable operator shall provide written notice to any broadcast television station at least 30 days prior to either deleting from carriage or repositioning that station."
Nexstar officials also point out that Time Warner has been sanctioned by the FCC repeatedly for failing to provide customers and local franchising authorities with adequate notice prior to service changes.
Time Warner did not provide Nexstar, its customers, or on information and belief, its franchising authorities with the required 30 day notice of its programming change, the petition states.
In response, Time Warner claimed that it is aware of nothing in the Commissions' rules that would require 30 days advance notice to Nexstar or any other party in these circumstances, event though the cable provider requested a waiver to these very notice rules last year.
"Time Warner's obscure notice via its website cannot be deemed by the Commission as sufficient to provide its customers or its franchising authorities with the advance notice cable operators are required to provide," the petition states.
Nexstar asks the commission that, at the very minimum, it prohibits Time Warner from the carriage of WBRE on the Time Warner Utica System and WUTR on the Plattsburgh System. However, because this is not Time Warner's first or even second violation of the Notice Rules, Nexstar is proposing the FCC serve Time Warner's subscribers with a remedy that benefits them more directly by permitting WKTV and WVNY to immediately assert network non-duplication protection rights on the Time Warner Utica and Plattsburgh Systems.
"By granting (the owning companies) immediate network non-duplication protection rights, Time Warner will have no incentive to import market-irrelevant network affiliates such as WBRE and WUTR and every incentive to reach a resolution to its retransmission consent dispute with Smith Media and Lambert (the owning companies), thereby restoring local news and other local programming to its Utica and Plattsburgh subscribers," the filed petition states.
The petition filed with the FCC is signed by Elizabeth Hammond, the Vice President and General Counsel of Nexstar Broadcasting, and Dennis Thatch, Chief Operating Officer of Mission Broadcasting, owned by Nexstar.