WHDH blows off Leno - Why not both News and Leno using sub-channels

[Scott Fybush]

Sean Smyth wrote:
> On Fri, 4/3/09, John Bolduc <n1qgs@yahoo.com> wrote:
>> Why couldn't Channel 7 Boston have both news and Leno at 10:00pm?
>> Leno on 7.1 and News on 7.3, or the other way around.
> 
> Wouldn't placing Leno on any channel but the main channel bring on
> the same issues, re: violating the deal with NBC? Has this issue ever
> been litigated/ruled upon?

There are a couple of issues at play here.

NBC's affiliation agreement with WHDH probably predates digital 
subchannels - but I would imagine it would be interpreted as requiring 
the NBC programming, if carried at all, to be carried on 7.1.

Putting Leno on 7.3 would make him invisible to much of the potential 
audience, since the subchannel, if carried on cable at all, would be up 
on some digital tier. The more visible place to put Leno might be on 56.

That brings up another issue, which is the provision in FCC rules that 
prohibits networks from mandating that affiliates carry any specific 
programming, and requires networks to offer that programming to other 
stations in the market if it's not cleared by the primary affiliate. 
That rule dates back to the "Report on Chain Broadcasting" of 1939-1940, 
when the FCC was concerned, not without reason, about the extent to 
which networks were exercising total programming control over their 
affiliates.

It's my impression that recent affiliation agreements have been written 
in a way that may not (and remember, IANAL) be enforceable under those 
rules.

The primary recourse networks are supposed to have when an affiliate 
pre-empts too much of their programming is to switch affiliates at 
renewal time (as CBS chose to do in 1972 when it learned how much local 
programming WCVB planned to run)...but that's much harder to do when two 
of the other "big four" stations in the market are O&Os and the third is 
part of a very large non-O&O group with strong corporate ties to 
Disney/ABC.

s