Video marketplace dynamics spilled into the living rooms of college football fans when a carriage dispute between Disney and Charter resulted in college football blackouts for Charter customers in August and September. While blackouts have long been an unfortunate last resort from time to time when broadcasters and television carriers fail to negotiate mutually acceptable terms for carriage, it’s just the latest example of how what goes on behind the scenes in the video marketplace can have a major impact on access for viewers.
While the rules sometimes fall short, they have overall allowed the broadcasting landscape to thrive. Since 1965, must-carry and retransmission consent rules have governed the relationship between multichannel video programming distributors (MVPD) and broadcasters, requiring cable operators to either negotiate appropriate compensation for broadcasters or carry by default local broadcast television stations who elect and assert must-carry rights. These rules have protected local and religious broadcasting, driven investment in the industry, and allowed viewers to benefit from easy access to local news and information. Over the years, the Supreme Court has repeatedly concluded that must-carry rules are Constitutional and help to maintain a competitive communications marketplace.
As traditional television formats give way to cord-cutting and digital streaming, viewers benefit from more ways to watch television, more programming to choose from, and more ways to make sure that the programming they pay for is the programming they want. While this is (usually) excellent for viewers, it heralds serious challenges for noncommercial broadcasters who rely on must-carry rules, including religious and minority programmers. Unlike their cable counterparts, virtual linear TV platforms—which stand to dominate the video marketplace in the digital-driven era—are not subject to any comparable obligations to carry local stations within a designated market area (DMA) or even respond to requests for carriage. There is no evidence to suggest that virtual MVPDs (vMPVDs) are interested in carrying religious programmers voluntarily in order to serve public interest—and considerable anecdotal evidence suggesting that they are disinterested and dismissive of religious broadcasters’ petitions for carriage. If you have a local Christian television station in the San Francisco Bay Area, for example, your chances of being carried on a vMVPD are little to none, as One Ministries, Inc. (KQSL) president Keith Leitch has noted. According to Leitch’s research, the trend holds across the country, with Christian television stations virtually unrepresented on vMVPDs, depriving viewers who utilize virtual linear television (by choice or necessity) of an entire programming genre.
For nearly a decade, the FCC has contemplated revisiting the definition of an MVPD and considering whether the rules governing the relationship between broadcasters and MVPDs should also be applied to virtual linear platforms. Although this proposal failed when it was initially considered in 2014, the issue has once again gained momentum with industry coalitions and certain lawmakers. Sen. Maria Cantwell (D-Wash.), chair of the Senate Commerce Committee, Sen. Chuck Grassley (R-Iowa), and most recently, a group of 19 Senate Democrats, have corresponded with the FCC to urge Rosenworcel to revisit the proceeding. [Grassley letter, Cantwell letter, 19 Senate Democrats letter]
Republicans have contended that the retransmission consent framework of the 1990s would be a poor fit for streaming platforms today. House Energy & Commerce Committee chair Cathy McMorris Rodgers (R-Wash.) and Communications Subcommittee chair Bob Latta (R-Ohio) expressed this in an August letter to Rosenworcel, citing Rosenworcel’s previous position that the FCC did not have the authority to apply MVPD rules to online video providers and urging Rosenworcel not to take up the matter as a regulatory rulemaking. (In fact, in 2014, as a Commissioner, Rosenworcel indicated that she did believe the FCC had the authority.)
While objecting to reopening the docket, Republican lawmakers have proven willing to engage the discussion on the state of the video marketplace. On Sept. 13, 2023, the House Energy and Commerce Subcommittee on Communications and Technology invited industry leaders to give testimony as part of a hearing called “Lights, Camera, Subscriptions: State of the Video Marketplace.”
Although NRB wrote to the subcommittee in advance of the hearing, the interests of religious and noncommercial educational broadcasters were absent from the discussion. The conversation also stopped short of addressing the must-carry rules upon which thousands of noncommercial broadcasters rely. These omissions illustrate the importance of refreshing the docket and opening an official public commenting period, allowing the finer points of the issues and potential solutions to come to light for regulator and lawmaker benefit.
In May 2023, NRB’s board of directors approved a resolution titled “Maintaining Access for Christian Broadcasters in the Video Marketplace.” The resolution notes that “many Christian television broadcasters rely on the local channel carriage responsibilities of pay-TV platforms, also known as ‘must-carry’ rules, to continue providing valuable content that ministers to the spiritual welfare of their local communities.”
Good news for concerned television programmers: While the FCC rulemaking on MVPD classification has been long dormant, broadcasters can and should submit ex parte filings to the FCC to help build a record demonstrating the impact of this issue on our industry. Unlike an official public commenting period, regulators are not required to address issues raised in ex parte filings, but these submissions are still part of the public record (view recent entries in MB Docket 14-261 here). NRB is engaging lawmakers and regulators on this matter and working to maintain access to essential distribution platforms for local, independent, and religious programmers.