FCC Launches Inquiry on Independent Video Programming Issues

Last month the FCC initiated an official inquiry “to begin a conversation on the state of independent and diverse programming.”  The agency’s Notice of Inquiry (NOI) is itself not a new regulatory proceeding, but is intended to obtain public comments on challenges independent programmers have in getting carriage on video platforms.  The FCC’s press release states, “This action will help the Commission assess the current state of video programming diversity and determine whether further action is needed to promote independent programming sources.”

The NOI is particularly interested in receiving comments on often-used carriage contract terms like “most favored nation” and “alternative distribution method” clauses, on concerns with over the top (OTT) carriage platforms, and on negotiation tactics like program bundling.  The agency also seeks responses to assertions that some platforms “discriminate against public, educational or government access (PEG) programming.” 

Commissioner Mignon Clyburn, who had pushed for the proceeding, noted she was unsure if the agency is the best place to resolve any issues raised by the NOI, but called it “a fact-finding exercise that will start a conversation on how best to promote the availability of diverse and independent sources of video programming.”

The NOI was approved without dissent, apparently with the understanding that it was an avenue for public feedback.  However, Commissioner Michael O’Rielly was especially cautious.  He warned of a move toward regulation, and said, “Though billed as a simple NOI laying out some questions to give a platform for more dialogue, almost every paragraph in the original draft was slanted in the direction of that push.” He and Commissioner Ajit Pai offered edits to improve the NOI and the acceptance of many of those changes allowed his concurrence with it.  Commissioner O’Rielly concluded, “Ultimately, I hope that these edits will help steer the proceeding into conversation territory.”

  • Find this FCC Notice of Inquiry and related statements by all the Commissioners here.

By Aaron Mercer, Vice President of Government Relations

Published: March 4, 2016

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