FCC Looks to Ban MFNs, ADMs Under New Look at Indie Programming Challenges
The FCC is proposing to ban most favored nation (MFN) provisions in carriage agreements as part of a resurrected look at challenges independent programmers face in getting carriage. An NPRM adopted Wednesday and released Friday also proposes banning unreasonable alternative…
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distribution methods (ADM) in carriage agreements. The NPRM was approved 3-2 along party lines. A previous look at indie programmer challenges had been championed by Commissioner Mignon Clyburn under Chairman Tom Wheeler (see 1601290047), but no action was taken under Chairman Ajit Pai. The NPRM asks questions about the state of the video marketplace and whether indie programmers have better carriage opportunities on platforms than they did in 2016. Beyond MFNs and ADMs, the NPRM also asks about the prevalence of forced bundling practices and if other practices impede indie programmer market entry or growth. MFN provisions guarantee all multichannel video programming distributors (MVPD) pay a programmer the same. ADMs bar programmers from showing content on an online video distributor for a window of time after it has aired on a linear channel. "The marketplace for video programming continues to evolve and provide consumers with new ways to watch," Chairwoman Jessica Rosenworcel said. "But the laws that govern this marketplace from Congress have not changed. What also has not changed is that independent programmers continue to express concern about the challenges they have getting their programming on the channel line-up of cable and satellite television." Commissioner Brendan Carr in his dissent said the NPRM "proceeds from a dated view of the [video] marketplace that can only further tilt the regulatory playing field in a way that will not serve consumers’ interests." He said it stretches the FCC's authority under Communications Act Section 616 -- prohibiting MVPD discrimination against programmers -- beyond what Congress intended. Commissioner Nathan Simington said in his dissent: "A public notice refreshing the record, or a fresh notice of inquiry, would have been appropriate paths for the Commission to take up the questions posed by the notice of proposed rulemaking here... Instead, we opt to tentatively conclude a great deal about the structure of the video marketplace, and what public interest demands we do, on the basis of a stale record."