On January 17, 2024, the FCC released a Notice of Proposed Rulemaking (“NPRM”) seeking comment on a newly proposed requirement for cable operators and direct broadcast satellite (“DBS”) providers, which, if enacted, would require those cable operators and DBS providers to make available rebates to their subscribers for programming blackouts caused by failed retransmission consent or carriage renegotiations. 

If adopted, the new rule would add an arrow to the Commission’s quiver as it seeks to address what the FCC states is an increasing number and duration of broadcast station blackouts across the country over the past decade.  This NPRM comes while another FCC proposal is being considered that would require multichannel video programming distributors (“MVPDs”) to notify the Commission when a blackout occurs due to a breakdown in retransmission consent negotiations. 

The NPRM specifically seeks comment on (i) how to apply the new rule; (ii) whether to specify the method that cable operators and DBS providers must use to offer the rebates and, if so, how they should issue rebates; (iii) the FCC’s statutory authority to adopt the proposed rebate rule; (iv) how the FCC should enforce the proposed rebate rule; (v) the costs and benefits of such a rule; (vi) the effects that such a rule would have on digital equity and inclusion; and (vii) any other alternative proposals to ensure that subscribers are made whole when they lose access to programming due to blackouts, which are inherently beyond their control.  The Commission also invites the public to provide comments on why the number of blackouts has increased so substantially in recent years.  

If you have any questions or would like assistance with preparing comments to the NPRM, please contact your FHH attorney.