FCC Starting Fact Finding on Diverse, Indie Programmer Woes
Along with documenting carriage hurdles facing independent and diverse programmers, the FCC in a notice of inquiry approved Thursday is looking for input on possible actions it might take to boost independent programming sources, Media Bureau Chief Bill Lake said. The commissioners approved the NOI, which was mostly as expected (see 1601290047) and seeks comments in docket 16-41 after it's published in the Federal Register. Chairman Tom Wheeler didn't comment about actions the FCC could consider after the NOI, which Commissioner Mignon Clyburn sought as part of last year's OK of AT&T buying DirecTV.
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Independent video programmers have repeatedly said multichannel video programming distributors' practices limit their reach and stifle competition, Lake said. Through the NOI, the FCC is seeking comment on the major challenges for traditional and emerging platforms, Lake said. While the video market is changing rapidly, with incumbent MVPDs' market dominance eroding, getting carriage on the incumbents "is still vital" to success, Media Bureau attorney Calisha Myers said. The notice wasn't yet issued, though a news release issued after the commissioners' meeting discussed it.
The FCC said areas where the NOI seeks comment include common carriage agreement contractual clauses covering most-favored nation and alternative distribution method issues; distribution via over-the-top platforms and the costs/benefits of distributing solely via OTT; program bundling; MVPD negotiation tactics; and claims of MVPD discrimination against public, educational and government programming. It also will ask what legal authority the FCC has in this area and what role it can play, Myers said.
That authority might come in the form of Section 257 of the Communications Act, which requires the FCC to try to eliminate hurdles to telecommunications and information service entrepreneurs and other small businesses, Clyburn said. Access issues for diverse and independent media came up during the AT&T/DirecTV proceedings, Clyburn said, but that wasn't the venue for tackling it; a separate proceeding is.
Commissioners Mike O'Rielly and Ajit Pai, though approving the NOI, also indicated the market for such diverse programming is booming and viewers have an growing cornucopia of content sources. Pai, pointing to such programming as The Misadventures of Awkward Black Girl YouTube series, said OTT has created more distribution outlets than ever, while data show populations of color are particularly heavy OTT viewers. "Programs like [Netflix series] Master of None are not the product of government regulation," Pai said. "We should be careful not to hold back this ... revolution.”
O'Rielly said he concurred with the NOI, but was critical of some of its wording. "It should not come as a spoiler to say that what we are beginning is more accurately described as the latest regulatory push," O'Rielly said. "Though billed as a simple NOI laying out some questions to give a platform for more dialog, almost every paragraph in the original draft was slanted in the direction of that push." He also said some wording changes he and Pai got in potentially "will help steer the proceeding" from regulatory push to fact finding.
"Starz has had great success with our diverse programs, including Survivors' Remorse and Power, but in this rapidly changing industry, we clearly see the barriers that exist for independent broadcasters who produce material with themes and faces that have ethnic, racial, gender or LGBTQ diversity through development and actually get it carried," CEO Chris Albrecht said in a statement Thursday. "I applaud the FCC for shining a light into the challenges producers face when creating diverse programming and finding carriage that enables them to reach the American public.”