Years of Small, Indie Programmer Complaints About MVPDs Lead to NOI, Clyburn Says
Repeated complaints by small and independent programmers and public, education and governmental (PEG) programmers about access and carriage issues resulted in the notice of inquiry to be considered by commissioners at their February meeting (see 1601280069), Commissioner Mignon Clyburn told us Friday. "For a number of years, I've heard from independent programmers who basically said, 'I've got this content, I've got these concepts [but] I can't get my phone call answered, I can't get my content to market, I'm dying on the vine because I don't seem to have a distribution outlet.'"
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The NOI will seek comment on three major topics: multichannel video programming distributors' negotiation practices, common contractual provisions and PEG issues, Clyburn said.
PEG advocates have said MVPDs sometimes discriminate against their programming by making it difficult to find, Clyburn told us. "Those people interested in what's going on at City Hall or the like, they have no access unless they accidentally turn the channel and find them." Such PEG issues "are common," though different local programmers can have different issues with different MVPDs, said Mike Wassenaar, Alliance for Community Media president. "This is my number-one complaint amongst my member organizations across the country."
Small independent programmers also have frequently raised the issue of MVPDs being noncommunicative in negotiations, or presenting counteroffers "that are extremely inadequate," Clyburn said. The NOI also will ask a variety of questions about contractual provisions that independent programmers have alleged in the past, such as restrictions on the ability to distribute via alternative methods such as over-the-top, Clyburn said. It also will ask about the costs, benefits and viability to independent programmers of forgoing MVPDs to distribute solely by over-the-top, she said. It will ask about programming bundling issues, because MVPDs have told both her and independent programmers that capacity issues have hindered adding new channels, Clyburn said: "They’ve got nowhere to go. The distributor is saying, 'I'm capacity-constrained because of bundling.'”
When asked if MVPDs also likely will weigh in, Clyburn said the NOI was crafted "to hear from all sectors." "I expect it to be a healthy vehicle to hear from entities of all sizes with various levels of influence," she said. NCTA didn't comment. American Cable Association members "are strong supporters of independent programmers," a spokesman said in a statement. "In fact, programmers seeking to gain access to cable viewers ... often rely on ACA members to get their start.”
The inquiry isn't necessarily the first step in a rulemaking, Clyburn said. "If there are any answers or solutions people might want to weigh in [on], we're inviting [them] to do so," she said. "We're not saying who's going to do the fixing. This is a conversation, a fact-finding mission in order to start facilitating conversations about issues I've taken countless meetings about."
The issue of small and indie programmers came up during the FCC's review of AT&T buying DirecTV, and Clyburn said that was when she asked Chairman Tom Wheeler about some kind of process to look into promoting the availability of such programming to consumers. "Let's have a conversation about how this gets done," she said. In a blog post Thursday, Wheeler said that after Clyburn raised those issues during AT&T/DirecTV, "I’ve heard this call loud and clear" and is circulating the NOI. "The goal of this inquiry is to assess how the Commission could foster greater consumer choice and enhance diversity by eliminating or reducing any barriers experienced by programmers, especially small programmers and new entrants, in reaching consumers," Wheeler said.
The NOI is "a long-needed look at the economics of the video programming marketplace," Public Knowledge Vice President-Government Affairs Chris Lewis said in a statement: "This proceeding is a critical starting point to addressing the obstacles so many programmers and content creators face in their efforts to reach consumers, both on cable and over-the-top. It should be a catalyst to eliminate restrictive contracts and similar tools that prevent creators from reaching more viewers." Also pointing to complaints PK has received about "strong-arm tactics by dominant pay TV distributors can reduce the availability of content online, and prevent diverse and independent content from reaching an audience," Lewis said: "The time is right for the Commission to take a hard look at practices that could disadvantage smaller players and deny consumers the competitive benefits that new platforms and technologies allow.”