Whether the FCC's look into independent and diverse programming issues leads to rules or a policy statement remains to be seen, "but this is a great first step," Public Knowledge Policy Fellow John Gasparini said in a PK-organized media conference call Tuesday discussing the notice of inquiry (see 1602180044). PK in a filing in the indie programming NOI docket singled out most-favored-nation (MFN) and alternative distribution means (ADM) contractual clauses as particularly stifling video marketplace diversity (see 1603310044) and echoed that sentiment Tuesday. "Why is so much video still held hostage by the legacy pay-TV model?” PK Government Affairs Associate Counsel Kate Forscey asked, contrasting the digital video market with the digital music and literature markets. MVPD incumbents hold back competition through limits on over-the-top competitors and those limits disproportionately disadvantage indie and niche programmers, she said. Forscey also said the FCC would have authority under Title VI of the Telecom Act to tackle such issues. ISwop Networks CEO Broderick Byers said the job search advice-centric Employment Channel he created, while popular, couldn't get MVPD carriage because of concerns that unemployed viewers who might be unable to pay cable bills are undesirable viewers. “Corporate was out of touch," Byers said. "Having a few people decide what mass audiences would be interested in is absurd. You should let the consumer decide.” Independence in the linear market is at an all-time low, with 5 percent of original scripted contents on broadcast networks in prime time during the 2014-15 season being independently produced, compared with 12 percent of all scripted series on basic cable/pay-TV, said Garrett Schneider, research and policy analyst at the Writers Guild of America, West. Meanwhile, indie producers accounted for 49 percent of TV-length scripted shows released digitally in that same season, he said. "We hope to see an effort to reopen the market." NOI replies are due April 19.
Whether the FCC's look into independent and diverse programming issues leads to rules or a policy statement remains to be seen, "but this is a great first step," Public Knowledge Policy Fellow John Gasparini said in a PK-organized media conference call Tuesday discussing the notice of inquiry (see 1602180044). PK in a filing in the indie programming NOI docket singled out most-favored-nation (MFN) and alternative distribution means (ADM) contractual clauses as particularly stifling video marketplace diversity (see 1603310044) and echoed that sentiment Tuesday. "Why is so much video still held hostage by the legacy pay-TV model?” PK Government Affairs Associate Counsel Kate Forscey asked, contrasting the digital video market with the digital music and literature markets. MVPD incumbents hold back competition through limits on over-the-top competitors and those limits disproportionately disadvantage indie and niche programmers, she said. Forscey also said the FCC would have authority under Title VI of the Telecom Act to tackle such issues. ISwop Networks CEO Broderick Byers said the job search advice-centric Employment Channel he created, while popular, couldn't get MVPD carriage because of concerns that unemployed viewers who might be unable to pay cable bills are undesirable viewers. “Corporate was out of touch," Byers said. "Having a few people decide what mass audiences would be interested in is absurd. You should let the consumer decide.” Independence in the linear market is at an all-time low, with 5 percent of original scripted contents on broadcast networks in prime time during the 2014-15 season being independently produced, compared with 12 percent of all scripted series on basic cable/pay-TV, said Garrett Schneider, research and policy analyst at the Writers Guild of America, West. Meanwhile, indie producers accounted for 49 percent of TV-length scripted shows released digitally in that same season, he said. "We hope to see an effort to reopen the market." NOI replies are due April 19.
The cable TV market "is on an autopilot course to being unaffordable in small towns like ours," largely on ballooning content costs, American Cable Association Chairman/MCTV President Robert Gessner said. During an episode of C-SPAN’s The Communicators set to have aired Saturday, Gessner said that "the crisis of unavoidability" will hit smaller markets like MCTV's, with 47,000 customers in Ohio, first because TV service is more expensive to provide there because less-dense suburban and rural areas have fewer customers per mile, and those customers have lower incomes. Gessner said that customers faced with growing cable bills "will stop subscribing to the expensive satellite-delivered programming networks and rely more and more on a combination of broadcast television and supplement that with what they want from the Internet.”
The cable TV market "is on an autopilot course to being unaffordable in small towns like ours," largely on ballooning content costs, American Cable Association Chairman/MCTV President Robert Gessner said. During an episode of C-SPAN’s The Communicators set to have aired Saturday, Gessner said that "the crisis of unavoidability" will hit smaller markets like MCTV's, with 47,000 customers in Ohio, first because TV service is more expensive to provide there because less-dense suburban and rural areas have fewer customers per mile, and those customers have lower incomes. Gessner said that customers faced with growing cable bills "will stop subscribing to the expensive satellite-delivered programming networks and rely more and more on a combination of broadcast television and supplement that with what they want from the Internet.”
From creating a multipronged test to gauge the anticompetitiveness of contractual most-favored-nation (MFN) and alternative distribution means (ADM) language, to curbing the use of bundling, independent and diverse programmers and their allies have multiple suggestions for the FCC on how better to improve the marketplace. Wednesday was the deadline for filings in docket 16-41 in the agency's notice of inquiry regarding the state of the diverse and indie programming market (see 1602180044), with reply comments due April 19. MFNs and ADMs have become a major focus of many parties in the proceeding (see 1603300055).
The FCC should have asked Congress to act on effective competition rather than "defy the statute," said a joint brief by NAB, NATOA and the Northern Dakota County (Minnesota) Cable Communications Commission to the U.S. Court of Appeals for the D.C. Circuit in their appeal of the agency's 2015 effective competition order (see 1506020060). But the industry is wrong in its argument the FCC can't terminate any local franchise authority's certification without a party first petitioning for that revocation (see 1603090021), the FCC responded in its own brief.
Alternative distribution method and most-favored-nation language in carriage contracts are emerging as a major point of contention in the FCC's notice of inquiry on carriage hurdles faced by independent and diverse programmers (see 1602180044). The deadline for comments in docket 16-41 was Wednesday, with indie programmers and allies raising ADMs and MFNs as problematic, while Comcast and its NBCUniversal defended them.
The Computer & Communications Industry Association, the Electronic Frontier Foundation, Google, Microsoft, Public Knowledge, several intellectual property law professors, library associations and others supported TVEyes' appeal of a 2015 federal court decision. Several amici curiae briefs were filed Wednesday with the 2nd U.S. Circuit Court of Appeals in TVEyes' appeal of a U.S. District Court decision that the company's archiving function is fair use, but emailing, downloading and date/time searches aren't, and a subsequent injunction (see 1603180007). Fox News Network, which sued TVEyes in 2013, has a June 15 deadline for its brief in the appeal.
The Computer & Communications Industry Association, the Electronic Frontier Foundation, Google, Microsoft, Public Knowledge, several intellectual property law professors, library associations and others supported TVEyes' appeal of a 2015 federal court decision. Several amici curiae briefs were filed Wednesday with the 2nd U.S. Circuit Court of Appeals in TVEyes' appeal of a U.S. District Court decision that the company's archiving function is fair use, but emailing, downloading and date/time searches aren't, and a subsequent injunction (see 1603180007). Fox News Network, which sued TVEyes in 2013, has a June 15 deadline for its brief in the appeal.
Of the 160,000-plus brief comments to the FCC on Charter Communications' proposed takeovers of Bright House Networks and Time Warner Cable, Herring Networks is claiming credit for close to a third due to its campaign targeting its viewers and potential subscribers. Whether those submissions carry any weight is debatable. Attorneys told us such comments are largely whistling in the wind because the FCC mainly looks at substantive statements that add to the analysis, and brief comments almost always are anything but.