Indie Programming NPRM, Light on Conclusions, Seen Likely for Adoption
The independent programmer NPRM circulated on the 10th floor last month (see 2307120072) is largely seeking to refresh the record of the 2016 indie programming NPRM, FCC officials told us. The NPRM is light on conclusory language and asks a lot of questions about issues like most-favored-nation (MFN) and alternative distribution method provisions in program carriage agreements, they said. Indie programmers and allies said the need for FCC intervention hasn't lessened in the intervening years.
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Creating a draft order from the item could be problematic under the Administrative Procedure Act because it's very light on tentative conclusions or proposals, one FCC source said. He said commissioners might discuss rolling the item back to a notice of inquiry. Being so light on conclusions, though, it's likely to get voted out, possibly as soon as month's end, he said.
Another FCC official said the NPRM largely repeats what the agency asked in 2016 and seeks comment on how the market has changed since then. Advocates for the NPRM lobbying at the FCC argued streaming is an increasingly important route for distribution, but MFN clauses sometimes compare across different services, so prohibiting them in cable could bleed out to other areas, the official said.
That 2016 NOI on indie programming was unanimously approved (see 1602180044), but a subsequent NPRM that year passed 3-2 along party lines, with Republican minority commissioners questioning legal authority and regulatory overreach (see 1609290036).
MFNs "have turned into a joke [used by some major MVPDs] to essentially beat us into submission," said Patrick Gottsch, president of Rural Media Group, whose RFD-TV was active in the 2016 proceeding. The FCC needs to “make it a level playing field,” he said. The difficulty in getting carriage by major MVPDs meant independent programmers producing programming targeting some portion of rural America have withered from 93 in 2016 to 33 today, he said. The 2016 NPRM never went any further, but Gottsch said he's optimistic about the agency acting this time. Citing conversations with the agency, he said, "People are really paying attention to this now."
“The challenges facing independent media have only gotten worse, not better, since the FCC last examined these issues," Fuse Media CEO Miguel Roggero said in a statement. Fuse was active in the 2016 proceeding.
Cable distributors are facing a competitive squeeze from the rise of virtual providers like virtual MVPDs, and cable is in turn putting a tighter squeeze on programmers with contractual terms, said Ishan Mehta, Common Cause director-Media and Democracy Program. The 2016 proceeding was "a good start" for trying to deal with the competitive market imbalance posed by "supercharged conglomerates" in the cable industry, he said. "Some sort of guardrails are really important," he said. A thorny issue is whether the FCC item addresses only MVPD not VMVPD practices, he said.