In the longstanding dispute over retransmission consent negotiations between Comcast and Mission Broadcasting’s WPIX, Mission Broadcasting and Nexstar have filed separate briefs contesting the FCC ruling that Mission should pay a $150,000 fine for violating requirements to negotiate in good faith.
In its filing, Nexstar said the FCC ruling was “procedurally improper, prejudicial, and unsupported by the facts or the law.”
Comcast filed an informal complaint in December 2022 against Nexstar Media Group, Inc. and Mission Broadcasting, Inc. for "Failure to Negotiate Retransmission Consent in Good Faith."
In a Jan. 16 2024 order the FCC ruled that “Comcast has satisfied its burden of proof with respect to Mission’s failure to negotiate in good faith. We, therefore, grant the Complaint, in part, and propose a forfeiture of $150,000 against Mission, licensee of WPIX.”
WPIX is owned by Mission Broadcasting and operated by Nexstar under shared services agreements. Comcast named both Nexstar and Mission in its complaint.
In the January order, the FCC did not rule on the allegations against Nexstar, which the agency said it was considering separately. But it found that "Nexstar does not dispute that it made the proposals identified by Comcast when negotiating as the representative of WPIX, or that those proposals would have foreclosed the filing of certain complaints with the Commission," which the FCC said is inconsistent with the requirement to negotiate in good faith. The FCC also rejected Nexstar's argument that it did not violate the Good Faith provisions.
In its filing with the FCC, Mission said “the Bureau erred in finding a violation of the good faith retransmission consent negotiation requirement, and (2) the proposed forfeiture of $150,000 exceeds the Bureau's delegated authority, was calculated irrationally, and was adjusted upward unreasonably. As a result, the forfeiture should be canceled or, at a minimum, reduced to $7,500.”
Mission also concluded that “a consideration of all the facts involved in the retransmission consent negotiations concerning WPIX cannot plausibly justify a determination that the Proposal constituted bad faith, putting aside that the Bureau's authority does not even reach litigation settlement discussions. The NAL [Notice of Apparent Liability] should thus be rescinded.”
In its filing with the FCC Nexstar also disputed the idea it violated the good faith retransmission consent negotiations requirements and complained that the FCC had improperly judged Nexstar’s actions in its ruling against Mission.
“Although issued to and directed towards Mission, the NAL’s finding of apparent liability rests entirely on the conclusion that Nexstar’s conduct – specifically, the communication of a confidential litigation settlement proposal to Comcast Cable Communications, LLC...to resolve a breach of contract lawsuit initiated by Nexstar—violated the FCC’s good faith negotiation rules,” Nexstar complained.
“The Bureau’s statement that the NAL `[does] not address any of the allegations against Nexstar’ is plainly untrue,” Nexstar said. “Comcast’s allegations with respect to the specific conduct at issue in the NAL...were made against both Nexstar and Mission and relate solely to Nexstar’s conduct as Mission’s negotiating representative for WPIX.”
“Through the NAL, the Bureau impermissibly prejudges the allegations against Nexstar, while at the same time claiming that they `are under review by the Commission pending the outcome of ongoing investigations,' Nexstar said, adding that it “is entitled to due process."
"Before the FCC makes any determinations regarding Nexstar’s conduct, Nexstar is owed all of the rights accorded by due process and applicable rules and law, including the opportunity to fully address any Commission conclusions related to Nexstar’s conduct and the allegations set forth in Comcast’s complaint," Nexstar argued. "By directing the NAL exclusively towards Mission and asserting that it `address[es] only a subset of the allegations against Mission' and `[does] not address any of the allegations against Nexstar,’ the Bureau makes clear that it does not intend to afford Nexstar those protections here. Accordingly, while it submits this objection to address the NAL’s procedural, factual, and legal flaws, Nexstar awaits the opportunity to fully represent its interests and avail itself of applicable procedural protections in any future Notices of Apparent Liability or other proceedings that may be directed towards it.”
While the FCC has not ruled on Nexstar’s potential liability in the WPIX matter, the arguments it used to fine Mission $150,000 are very similar to the one’s it made against Nexstar in a retransmission dispute involving Hawaiian Telecom Services Company.
In that case, the FCC has issued an order proposing fines totaling $720,000 against Nexstar for violations in how it negotiated a 2023 retransmission consent agreement with Hawaiian Telcom Services Company. Nexstar has said it will fight those fines.
