The Bomb Keeps the Lights On: The Use of Final-Offer Arbitration in Failed Retransmission Consent Negotiations

Authors

Daniel J. Weiss, Benjamin N. Cardozo School of Law

Abstract

This Note will consider the imposition of binding arbitration in instances of failed retransmission consent negotiations between broadcasters and cable companies. It will first consider the FCC's authority to do so under the Communication Act of 1934 and the ADRA. Central to this discussion will be the debate and legislative history surrounding the 1992 Act and the way that mandatory binding arbitration has been used other contexts by the Commission. Further, this Note will explore the specific type of arbitration to be employed by the FCC in event the Commission finds they have the authority to mandate such a procedure. Specifically, this note will explore final-offer (or "baseball-style") arbitration, how it differs from traditional arbitration, and how such a procedure would be implemented in failed retransmission consent negotiations to prevent retransmission consent blackouts. The disadvantages of using final-offer arbitration in retransmission consent and ways to mitigate those potential harms will also be explored. This Note will conclude by arguing that (1) the FCC has the statutory authority to mandate binding final-offer arbitration where negotiations fail, and (2) the imposition of such a mechanism would be an important step in protecting consumer from broadcast blackouts in the future.

Disciplines

Communications Law | Consumer Protection Law | Dispute Resolution and Arbitration | Intellectual Property Law | Law | Legislation

Recommended Citation

Daniel J. Weiss, The Bomb Keeps the Lights On: The Use of Final-Offer Arbitration in Failed Retransmission Consent Negotiations, 16 Cardozo J. Conflict Resol. 685 (2015).
Available at: https://larc.cardozo.yu.edu/cjcr/vol16/iss2/12