FCC Examines State of Video Programming Diversity

The Federal Communications Commission issued a Notice of Inquiry (NOI) to begin a conversation on the state of independent and diverse programming. The NOI solicits comment on the principal challenges independent video programmers face in gaining carriage of their content on both traditional and emerging distribution platforms.

This action will help the FCC assess the current state of video programming diversity and determine whether further action is needed to promote independent programming sources. Independent video programmers repeatedly have expressed concern that some practices of cable operators and other multichannel video programming distributors (MVPDs) limit their ability to reach viewers. To evaluate these concerns and assess the impact of these practices on the Commission’s goal of fostering a diverse, robust, and competitive programming marketplace, the NOI asks for comment on the general state of the marketplace for independent video programming and the challenges faced by all independent programmers – including new and emerging programmers – in attempting to launch or grow.

The NOI specifically invites comment on several issues that independent programmers and other interested parties have raised in other proceedings, including:

• Contractual provisions often contained in program carriage agreements, such as most favored nation (MFN) and alternative distribution method (ADM) clauses;
• Distribution via over the top (OTT) platforms, and the costs and benefits of foregoing MVPD carriage to pursue OTT carriage;
• Program bundling (i.e., the practice by some content companies of requiring MVPDs or other distributors to carry large bundles in order to gain access to marquee programming);
• Negotiation tactics alleged to be common among MVPDs that may impede the ability of independent programmers to obtain carriage; and
• Claims that MVPDs discriminate against public, educational or government access (PEG) programming by failing to make PEG programming, and information about this programming, adequately available to subscribers.

Lastly, the NOI asks about the FCC’s legal authority in this area and what role, if any, it should play in addressing obstacles that hinder consumers from accessing sources of independent and diverse programming.