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FCC Gets Earful on Program Access

Agency’s inquiry is part of larger look at diversity in pay TV lineups 4/11/2016 8:00 AM Eastern
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The FCC is being pushed by some independent programmers to adopt new program-access regulations.

Washington — The Federal Communications Commission in February opened an inquiry into access by diverse programmers to distribution outlets, a call for information that has turned into a case of “everybody into the pool.”

 

The FCC is looking at the issue from a couple of angles. One is via the Charter-Time Warner Cable merger review process. The other is the proposal to “unlock” set-top boxes, which chairman Tom Wheeler has signaled could give diverse programmers a better showcase via third-party devices or applications that wed OTT to the traditional platforms that some programmers argue are effectively foreclosed due to lack of shelf space.

 

The notice of inquiry is wide-ranging and has drawn a crowd of folks seeking more access and, on the other side, arguing that distribution platforms are already diverse and quickly multiplying.

 

REPLIES ARE PLENTIFUL

 

The comments ranged from broad discussions of the issue to specific complaints about carriers and carriage.

 

In the spirit of access, following are some examples from both sides of the aisle.

 

Comcast, the nation’s largest cable operator, was a leading voice for a marketplace chock full of diversity and chances to show it off. It told the commission that content creators and programmers of independent and diverse content have more ways to reach consumers than ever, with skyrocketing opportunities on traditional and online platforms, with Comcast a party to that increase, not an obstruction.

 

Comcast said the FCC has neither a compelling policy reason nor plausible legal authority to get more involved than it is in carriage negotiations, and said the NOI “strains to see a glass half-empty, when in fact the glass is overflowing.”

 

The National Association of Broadcasters conceded most of the issues involved MVPDs, but wanted to make sure it said its piece about bundled programming and tiering. The group said most broadcasters were independent programmers as the FCC was defining it.

 

As to whether bundled or tiered programming is putting independent programmers at a disadvantage, the answer was a definite no. The NAB said programmers don’t have the market power to force bundling or tier placement terms on MVPDs, so regulating those would not boost diversity.

 

The NAB was not buying ISPs’ arguments about capacity constraints: “MVPD channel capacity has expanded, and is continuing to expand, at an impressive rate, doubling roughly every 10 years. These technological developments undermine arguments by MVPDs that channel capacity constraints restrict in any significant way their ability to offer more diverse and/or independent programming today.”

 

NO FAN OF TIERING

 

RFD-TV, which has a large fan base if the FCC deal docketis any gauge, took the opportunity to point out it was dropped from Verizon Communications’s Fios TV in February. It also took aim at program bundling, which it said hurt its chances of distribution, and at tiering, which it said “often relegates [it] to more expensive tiers with lower penetration.”

 

Like a number of others, RFD-TV slammed most favored nation clauses and alternative distribution method clauses it said foreclose “creative distribution strategies.” While some view the NOI as the first step in fact-finding, RFD-TV wants the FCC to take concrete action ASAP, including launching a rulemaking to require MVPDs to devote a minimum percentage of capacity to independent programmers.

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