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FCC asks independent programmers to submit challenges they face in access to TV audiences

(March 30, 2016) The Federal Communications Commission has issued a Notice of Inquiry (NOI) to begin a conversation on the state of independent and diverse programming. The NOI seeks comments on the challenges independent video programmers face in gaining carriage of their content on both traditional and emerging distribution platforms. 

Independent African-American video programmers and producers have long expressed concern that some cable operators and multichannel video programming distributors (MVPDs) have limited their ability to reach viewers. The FCC says it wants to hear these concerns in order to evaluate the impact of industry practices on the Commission's goals for diversity in programming.

"The FCC has a Congressional mandate to foster a diverse, robust, and competitive marketplace for video programming," said FCC Chairman Tom Wheeler. "We take this obligation seriously, and, today, we take action to better understand the barriers facing independent programmers."

"During consideration of the AT&T/DirecTV transaction, Commissioner Clyburn spoke out about the need for the Commission to take a fresh look at the video marketplace," Wheeler said, "and examine the challenges and barriers to expanding the availability of independent and diverse programming. This is that fresh look. Our goal is to begin a conversation on the state of independent and diverse programming. I look forward to hearing from the wealth of programmers out there on how we can promote greater consumer choice and enhance diversity by eliminating or reducing barriers faced by independent programmers in reaching viewers."

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.

"
Since my arrival at the FCC in the summer of 2009, I have met with and spoken to dozens of independent programmers from extreme ends of the ideological spectrum," said Commission Mignon Clyburn. "The goal of this Notice of Inquiry is to launch a fact-finding exercise that will start a conversation on how best to promote the availability of diverse and independent sources of video programming, including Public, Educational and Governmental Programming."

The National Association of Black Owned Broadcasters said it was pleased with the steps announced by the FCC to consider the difficulties African-American television producers and programmers have faced in gaining distribution for their content.

"This is a significant development in addressing this long-standing issue," said NABOB President Jim Winston. "We look forward to working with the Commission and independent programmers in achieving greater diversity and fairness by having a constructive dialogue on these concerns."

All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission to FCC Headquarters at 445 12th St., SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.


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