In a last-ditch effort to beef up program clearances, representatives of major TV networks have been urging the FCC to bar affiliates from pre-empting network entertainment programming except to air news or some locally originated public affairs shows, sources said last week.
As it stands, at least according to affiliates, Federal Communications Commission rules governing pre-emptions place no such limit on the ability of affiliates to pre-empt shows-even if the pre-emptions appear to serve an affiliate’s bottom line rather than public interest.
Network executives have argued recently that the intent of the law underlying the rules was to clear the way for program substitutions deemed to be of greater national or local importance than the network fare.
“That’s not the same thing as the chance to make more money,” this source said.
A network source also said an FCC ruling in the affiliates’ favor would free stations to pre-empt network programming at will, despite their contractual agreements to clear network programming.
“That’s overreaching on top of overreaching,” a network source said. “[The affiliates] are simply trying to drag the FCC into private-sector business negotiations.”
But according to the affiliates’ reading of the situation, the FCC has no choice but to rule in their favor.
“All of the networks’ arguments are about how the rule should be changed,” said one affiliate source. “We’re not the ones trying to change the rule. The networks are trying to drag the FCC into a debate that’s beside the point.”
In a recent filing with the FCC, the affiliates said the agency’s rules specify only that a network affiliation agreement must not prevent or hinder an affiliate from rejecting or refusing network programs that the station “reasonably believes to be unsatisfactory, unsuitable or contrary to the public interest.” In addition, the rule clears the way for substituting a program that “in the station’s opinion, is of greater local or national importance,” the filing said.
The dispute about the propriety of so-called “economic” pre-emption is the latest fight in the long-pending battle between the networks and affiliates over their rights. It started more than a year ago when the Network Affiliated Stations Alliance asked the Federal Communications Commission to investigate whether network efforts to limit pre-emptions ran afoul of agency regulations. The issue about economic pre-emption is arising now because one of the agency’s GOP commissioners-Kevin Martin-has made clear that he’s uncomfortable with sanctioning pre-emptions that are based solely on affiliate concerns for their bottom lines.
But no matter what the commissioner’s druthers, at least according to the affiliates, the agency’s existing rule says nothing about financial motivations.
“No mention is made of economic or noneconomic pre-emptions,” the affiliates said.
In its recent FCC filing, the Network Affiliated Stations Alliance also argued that distinguishing between economic and noneconomic pre-emptions would transform the agency’s right-to-reject principle into a content-based regulation.
“Higher ratings indicate that a program is more highly valued by viewers in the community,” NASA said. “A rule that precluded pre-emptions that achieved higher ratings or higher advertising revenues than the network program would turn the right-to-reject principle on its head by restricting affiliates from pre-empting the programming least suitable for their communities and affording the greatest pre-emption protection to those network programs that are least favored by the affiliate’s community.”
The affiliates also said that one way a local TV station serves its community is by providing advertising for politicians and local merchants. “A rule like this would preclude stations from pre-empting network programming in order to afford local merchants or local political candidates additional advertising spots at critical times of year,” NASA said.
At deadline, sources said the FCC appeared to still be stuck 2-2 on the issue, with Chairman Michael Powell and Commissioner Kathleen Abernathy making it clear they would prefer to dismiss the NASA case on procedural grounds. Sources said Mr. Martin and the FCC’s fourth commissioner-Democrat Michael Copps-believe the agency should rule on the petition. The light at the end of the tunnel, according to sources, is that Mr. Powell and Ms. Abernathy have indicated recently that they might be willing to modify their positions.
“It’s truly still in the discussion stage but is expected to be acted on soon,” said an FCC source.
Among the standard network contract clauses that have riled the affiliates is an NBC one that permits only five hours of pre-emptions a year (0.114 percent of the networks’ 4,394 hours, according to NASA’s math). Also of concern to affiliates is a Fox contract provision limiting pre-emptions to two hours a year (0.084 percent of 2,392 hours, according to the affiliates).
According to affiliate sources, CBS recently broke ranks with the other major networks and agreed to reinterpret and reform its affiliation agreements to resolve the concerns raised by affiliates.
But a CBS executive said that wasn’t true.
“I have no idea where it came from,” the CBS executive said.