[Federal Register Volume 81, Number 39 (Monday, February 29, 2016)]
[Notices]
[Pages 10241-10246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04331]
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FEDERAL COMMUNICATIONS COMMISSION
[MB Docket No. 16-41; FCC 16-19]
Promoting the Availability of Diverse and Independent Sources of
Video Programming
AGENCY: Federal Communications Commission.
ACTION: Notice of inquiry.
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SUMMARY: In this document, the Commission seeks comment on the
principal issues that independent video programmers confront in gaining
carriage in the current marketplace and possible actions the Commission
or others might take to address those issues. The goal of this
proceeding is to begin a conversation on the state of independent and
diverse programming, and to assess how the Commission or others could
foster greater consumer choice and enhance diversity in the evolving
video marketplace by
[[Page 10242]]
eliminating or reducing any barriers faced by independent programmers
in reaching viewers. The Commission seeks to explore ways to alleviate
such barriers, as well as its legal authority to do so.
DATES: Comments are due on or before March 30, 2016; reply comments are
due on or before April 19, 2016.
ADDRESSES: You may submit comments, identified by MB Docket No. 16-41,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Calisha Myers or Raelynn Remy of the Policy
Division, Media Bureau at (202) 418-2120 or [email protected];
[email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Inquiry, FCC 16-19, adopted and released on February 18, 2016. The
full text is available for public inspection and copying during regular
business hours in the FCC Reference Center, Federal Communications
Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554.
This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in
ASCII, Microsoft Word, and/or Adobe Acrobat. The complete text may be
purchased from the Commission's copy contractor, 445 12th Street SW.,
Room CY-B402, Washington, DC 20554. Alternative formats are available
for people with disabilities (Braille, large print, electronic files,
audio format), by sending an email to [email protected] or calling the
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Synopsis
I. Introduction
1. Over the last quarter century, we have seen significant changes
in the media landscape that have fundamentally altered the way in which
Americans access and consume video programming. When Congress passed
the 1992 Cable Act, the majority of American households had access to
only one pay television service, and alternatives to that service were
in their incipient stages. By contrast, consumers today can access
video programming over multiple competing platforms, and the dominance
of incumbent pay TV distributors has eroded. However, incumbent
operators retain a very important position in the video programming
marketplace. Although competition among video distributors has grown,
traditional multichannel video programming distributor (MVPD) carriage
is still important for the growth of many emerging programmers. Some
independent video programmers \1\ have expressed concern that certain
carriage practices of cable operators and other MVPDs may limit their
ability to reach viewers.
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\1\ For purposes of this proceeding, we define an ``independent
video programmer'' or ``independent programmer'' as one that is not
vertically integrated with a MVPD.
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2. A central objective of multichannel video programming regulation
is to foster a diverse, robust, and competitive marketplace for the
delivery of multichannel video programming.\2\ As the agency charged by
statute with implementing this objective, we seek to start a fact-
finding exercise on the current state of programming diversity. Through
this NOI, we seek comment on the principal issues that independent
video programmers confront in gaining carriage in the current
marketplace and possible actions the Commission or others might take to
address those issues. Our goal in this proceeding is to begin a
conversation on the state of independent and diverse programming, and
to assess how the Commission or others could foster greater consumer
choice and enhance diversity in the evolving video marketplace by
eliminating or reducing any barriers faced by independent programmers
in reaching viewers. For purposes of this NOI, we are particularly
interested in starting a dialogue on barriers experienced by all types
of independent programmers, including small programmers and new
entrants. We seek to explore ways that the Commission can alleviate
such barriers, as well as its legal authority to do so. Similar to the
Commission's exploratory efforts in other proceedings, we also seek to
be better informed to make any potential recommendations to other
agencies, Congress, or the private sector, if we find that solutions to
barriers exist that are beyond the authority of this agency. We also
are interested in addressing challenges faced by a specific type of
independent programmer--namely, public, educational, and governmental
(PEG) channels --with respect to MVPD carriage.
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\2\ See, e.g., Telecommunications Act of 1996, Pub L. 104-104,
Sec. 257(b), 110 Stat. 56, 77, (codified at 47 U.S.C. 257(b)); 47
U.S.C. 521; 47 U.S.C. 532(a); 47 U.S.C. 533(f)(2). See also 47
U.S.C. 521(a)(4), (b)(1) through (5); H.R. No. 102-862, at 2, 1992
U.S.C.C.A.N. 1231, 1232.
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II. Discussion
A. State of the Marketplace for Independent Programming
3. The Commission seeks information on the current state of the
marketplace for independent programming and the availability of such
programming to consumers. Has the number of independent programmers
grown or decreased? Has the diversity of programming available to
consumers expanded or contracted? What percentage of non-broadcast
networks are independent programmers? We also seek input on the manner
in which independent programmers are carried by distributors and
whether the answers to the following questions differ for independent
programmers and vertically integrated programmers. To what extent are
independent programmers carried by traditional MVPDs and to what extent
are they carried by over-the-top (OTT) providers? How many of the
independent networks distributed by MVPDs are also available on OTT
platforms? Is it more difficult for independent programmers to gain
carriage on certain MVPDs than others (e.g., cable vs. non-cable MVPDs,
or smaller vs. larger MVPDs)? Does the size of the MVPD matter? Is
there a disparity in the amount of independent programming on smaller
versus larger MVPDs? Do large MVPDs have market power that has an
effect on the ability of independent programmers to obtain carriage?
Conversely, to what extent does the size of the independent programmer
matter? Do large independent programmers have an easier time getting
carried than smaller ones? Are there characteristics of independent
programmers that enable some to gain MVPD carriage but not
[[Page 10243]]
others? To what extent does the level of competition among MVPDs impact
the bargaining leverage of independent programmers in negotiations for
carriage deals? With regard to the foregoing questions, commenters
should provide examples of and relevant information regarding specific
independent program networks.
B. Principal Marketplace Obstacles Faced by Independent Programmers
4. Independent programmers and others have alleged in various
proceedings that cable operators and other MVPDs engage in program
carriage practices that hamper the ability of programmers with limited
bargaining leverage to obtain distribution of their content. They claim
that these practices deprive consumers of the benefits of competition,
including greater choice and diversity in programming content. We seek
input below on several practices that independent programmers allege
have an adverse impact on them.\3\
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\3\ Pursuant to section 103(c) of the STELA Reauthorization Act
of 2014, the Commission recently issued a Notice of Proposed
Rulemaking to review the totality of the circumstances test for
evaluating whether broadcast stations and MVPDs are negotiating for
retransmission consent in good faith. See Implementation of section
103 of the STELA Reauthorization Act of 2014, Totality of the
Circumstances Test, MB Docket No. 15-216, Notice of Proposed
Rulemaking, 80 FR 59706 (2015) (Totality of the Circumstances NPRM).
Some of the issues raised in this NOI regarding negotiations between
MVPDs and programmers in general are similar to issues raised in the
Totality of the Circumstances NPRM. However, we direct parties
wishing to comment on issues relating to retransmission consent
negotiations between broadcasters and MVPDs to file any comments on
those issues in the Totality of the Circumstances NPRM docket.
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1. Insistence on Contract Provisions That Constrain the Ability of
Independent Programmers To Compete
5. Independent programmers and others have asserted that certain
MVPDs often demand that carriage agreements include certain contractual
provisions, such as most favored nation (MFN) and alternative
distribution method (ADM) clauses, that hinder programming competition,
innovation, and diversity.
6. Most Favored Nation Provisions. In general, MFN provisions
entitle the contracting video programming distributor to modify a
programming agreement to incorporate more favorable rates, contract
terms, or conditions that the contracting programmer later agrees to
with another distributor.\4\ These provisions are the result of
contractual agreements between programmers and distributors. MFN
clauses historically were used to protect favorable carriage rates
obtained by MVPDs that brought a large subscriber base to the
programmer, but can be misused to anticompetitive means in some
cases.\5\ Independent programmers claim that some MVPDs increasingly
have insisted on MFN treatment without regard to the concessions or
commitments made by the programmer to secure those terms from another
MVPD and without requiring the MVPD to deliver commensurate value to
the programmer.
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\4\ MFN rights can be conditional or unconditional. A
conditional MFN provision entitles a distributor to certain
contractual rights that the programmer has granted to another
distributor, as long as the distributor also accepts equivalent or
related terms and conditions contained in that other distributor's
agreement. An unconditional MFN provision, by contrast, contains no
such requirement that the distributor entitled to MFN rights accept
equivalent or related terms and conditions; it can elect to
incorporate in its agreement any of the terms of the other
distributor's agreement that it wants to incorporate.
\5\ See United States v. Apple, 791 F.3d 290, 319 (2d Cir.
2015), citing Blue Cross & Blue Shield United of Wisconsin v.
Marshfield Clinic, 65 F.3d 1406, 141 (7th Cir. 1995).
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7. Some parties claim that MVPDs' insistence on MFN provisions
precludes an independent programmer from making unique or innovative
arrangements designed to achieve initial carriage of new programming,
because those same unique terms could then be required to be extended
to all MVPDs. They further argue that, given the proliferation of MFN
provisions, an independent programmer that achieves some carriage is
likely to have numerous MFN obligations, and that this can initiate a
``domino effect'' when a single term in an agreement with one MVPD or
OTT service triggers the MFN obligations in a programmer's agreements
with other MVPDs. In particular, the prospect of having to make the
same concessions to all of the MVPDs with which an independent
programmer has MFN obligations may impede the ability of independent
programmers to negotiate carriage agreements with new-entrant
distributors that have smaller subscriber bases, such as new OTT
distributors. As a result, programmers and some advocacy groups claim,
some MVPDs are able to demand MFN concessions from independent
programmers that make OTT distribution economically infeasible, which
deters independent programmers from developing new and innovative types
of video programming, inhibits new distribution models, and limits the
diversity of programming available to consumers. On the other hand,
some antitrust analyses have noted that in some situations MFN
provisions may yield benefits, such as lower prices, reduced
transaction costs, or the development of new products.\6\
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\6\ See Steven C. Salop & Fiona Scott Morton, Developing an
Administrable MFN Enforcement Policy, 27 Antitrust 15, 15 (2013);
Jonathan B. Baker & Judith A. Chevalier, The Competitive
Consequences of Most-Favored-Nation Provisions, 27 Antitrust 20, 21-
22 (2013).
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8. We seek comment on the prevalence and scope of MFNs today in
contracts for carriage of non-broadcast video programming. Are MFN
provisions included in carriage contracts between independent
programmers and OTT distributors, or do they tend to be included only
in MVPD carriage contracts? Are MFN provisions more often included in
carriage contracts involving independent programmers than those
involving vertically integrated programmers? Does the size of the MVPD
or independent programmer affect whether MFN provisions are included in
carriage contracts? Do MFN provisions in carriage agreements between
MVPDs and independent programmers cover the terms of both other MVPD
agreements and OTT agreements? If so, how often do such MFN provisions
extend to OTT agreements? Do both cable and non-cable MVPDs require MFN
provisions? Do MFN provisions allow MVPDs to ``cherry pick,'' i.e., to
take advantage of the lower price available in a separate carriage
agreement without a reciprocal obligation? If so, how often? Will MVPDs
accept some reciprocal obligations while refusing other reciprocal
obligations?
9. We also seek comment on the costs and benefits of these
provisions. Are there specific types of MFN provisions that
particularly hinder the creation and distribution of new or niche
programming? If so, how do those provisions have this effect? How do
distributors enforce MFN provisions? Are there specific means of
enforcement that are more common or more onerous to independent
programmers than others? \7\ What benefits are associated with MFN
provisions, and are there contexts in which the benefits outweigh any
harmful effects of such provisions? Do MFNs result in lower prices for
consumers? Do they enhance the likelihood that a start-up independent
programmer will be able to gain carriage on MVPDs? Do they reduce
transaction costs between MVPDs and independent programmers? Do
independent programmers receive any consideration, economic or non-
economic, from
[[Page 10244]]
MVPDs in exchange for agreeing to MFN provisions?
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\7\ For example, some means of enforcement may include ``self-
policing'' by the programmer, an inquiry initiated by the MVPD, or
contractual rights that permit an MVPD to periodically audit the
programmer.
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10. Alternative Distribution Method Provisions. An ADM provision
restricts a programmer's ability to distribute its programming via an
alternate platform, often explicitly prohibiting specific non-MVPD
distribution methods (such as online platforms) and often for a
specified period of time (commonly referred to as a ``window'')
following the programming's original airing on a traditional
distribution channel.\8\ ADMs may take a variety of less-than-absolute
forms. For example, some provisions may ban the distribution of content
on a platform that carries fewer than a prescribed minimum number of
channels. This type of restriction may have the effect of preventing a
programmer from taking advantage of a desired distribution opportunity,
such as OTT distribution. According to some industry observers, in some
cases, a programmer that wishes to distribute its content online faces
the risk that MVPDs will refuse to carry its network. Independent video
programmers argue that limitations on the sharing or licensing of an
independent network's content online reduce the network's ability to
advertise and promote its content, as well as to share original
reporting and newsgathering with other outlets. On the other hand, an
ADM provision might encourage an MVPD to provide an independent
programmer with distribution that it otherwise would not receive if it
decided to also make its content available on alternative platforms.
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\8\ A traditional distribution channel typically offers linear
programming-programming prescheduled by the programming provider.
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11. We seek comment on the prevalence and scope of ADMs in
contracts for carriage of non-broadcast video programming as well as
the costs and benefits associated with such provisions. We request
input on the extent to which ADM provisions vary, the consideration
offered in exchange for such provisions, and the ways in which
distributors enforce ADM provisions. Are ADM provisions included in
carriage contracts between independent programmers and OTT
distributors, or are they included only in MVPD carriage contracts? Are
ADM provisions included only in carriage contracts involving
independent programmers or are they included in contracts involving
vertically integrated programmers as well? Do both cable and non-cable
MVPDs require such provisions? Are there specific provisions or means
of enforcement of ADM provisions that are more common to independent
programmers than others, or that have a different effect on independent
programmers? Is there an industry standard for the windowing
restrictions included in ADM provisions? Are certain window
requirements more harmful to independent programmers than others, and
if so, how prevalent are such requirements? In addition to carriage, do
independent programmers receive any consideration, economic or non-
economic, from MVPDs in exchange for agreeing to ADM provisions? By
providing MVPDs with incentives to carry new or under-exposed content,
can ADM provisions actually enable independent programmers to gain MVPD
carriage and thereby increase the exposure of their programming? Are
there other benefits associated with these provisions?
12. We also seek comment on the impact of MFN and ADM provisions on
the video marketplace and on the availability of independent
programming. Do such provisions thwart competition, diversity, or
innovation? Or do they increase MVPD's willingness to contract with
independent programmers? Do these types of provisions reflect a proper
balance between an MVPD's legitimate interest in being the exclusive
distributor of programming content for a set period of time and a
programmer's legitimate interest in providing its programming to
diverse distributors and platforms? We seek comment on whether MFN and
ADM provisions may be used to limit the ability of independent
programmers to experiment with new or unique distribution models or to
tailor deals with smaller MVPDs or online distributors. In particular,
how might MFNs or ADMs limit the ability of a programmer to license or
distribute its programming over-the-top or via its own platforms,
including as part of a direct-to-consumer Web site or application that
offers linear or on-demand content? Are there specific types of
provisions (e.g., unconditional MFNs or ADMs restricting paid
distribution) that are aimed more at restricting new means of
distribution than at facilitating efficient negotiations or protecting
an MVPD's investment in programming? Are there specific types of MFN or
ADM provisions that are pro-competitive and enhance independent
programmers' ability to gain MVPD carriage?
13. Other Contractual Provisions and OTT Carriage. We also seek
comment on whether there are other types of contractual provisions
besides MFN and ADM provisions that are used today that impact, in a
negative or positive way, the ability of independent programmers to
distribute their programming. Are there circumstances under which these
limits actually end up enabling MVPD distribution of program content
that might not otherwise be carried? Aside from contractual issues, are
there are other aspects of MVPD carriage that are preventing the
creation and distribution of diverse, independent programming? Ensuring
diverse and novel programming requires a viable, profitable business
model, for both MVPDs and programmers. Is it possible to sustain a
business model based upon carriage by a collection of small MVPDs, or
is it necessary to obtain carriage by a larger MVPD in order to attract
carriage by additional MVPDs? Is there a threshold level of MVPD
carriage that is necessary to sustain a viable business model?
14. In addition, we request input on the costs and benefits to
independent programmers of forgoing MVPD carriage to pursue OTT
carriage. While OTT distribution has lower barriers to entry, it is
still a nascent service in some respects. Is the OTT platform a viable
business model? Is it a viable alternative to MVPD carriage? If not,
what must happen before it can be considered a viable business model?
Does the OTT platform provide an easier path to marketplace success?
What benefits of carriage (e.g., level of viewership or advertising
revenue) on OTT platforms are necessary for an independent programmer
to remain viable? What are the difficulties new and emerging
programmers face in negotiating for these benefits? How do the benefits
of carriage on OTT platforms compare with the benefits of carriage on
MVPD platforms? Do MVPDs offer favorable carriage terms that OTT
platforms are unable to offer? If so, what are these terms and to what
extent are these terms necessary to remain viable in today's
marketplace? Can a successful OTT experience lead to future MVPD
carriage and/or vice versa? To the extent possible, we request that
commenters provide examples of independent programmers that have been
able to launch and grow on OTT platforms. Despite such launch and
growth, are there additional challenges that independent programmers
face in gaining carriage and growing their viewership on OTT platforms?
If so, what are they and what effect do they have? Are any of these
challenges particular to diverse and niche programmers?
2. Program Bundling
15. MVPDs claim that some large media entities with multiple
program
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offerings, including vertically-integrated programmers, are able to
force MVPDs to carry less desirable content through bundling
arrangements. In particular, these parties assert that such entities
often leverage their marquee programming (e.g., premium channels or
regional sports programming) to force MVPDs to carry additional
channels that have little or no consumer demand. Some parties maintain
that the proliferation of bundling arrangements limits programming
choices and raises costs for consumers by forcing MVPDs to accept less
desirable programming that may displace independent and diverse
programming. Independent programmers argue that bundling arrangements
drain the resources and monopolize the channel capacity of MVPDs to the
detriment of independent programming. MVPDs that desire to cut costs
then may drop independent programming from their lineups, refuse to
carry new programming, or offer carriage only on terms less favorable
to independent programmers. Other independent programmers argue that
forced bundling is merely a pretext used by MVPDs in order to justify
continued denial of carriage for independent programming. Along similar
lines, some parties have claimed that programmers impose an extra
charge on MVPDs for subscriber access to their online programming and
that this has the potential to drain resources that might otherwise be
devoted to carriage of independent programming. How pervasive is this
practice?
16. Large programmers have defended the use of program bundles and
refuted arguments that they have adverse effects on MVPDs or consumers.
They maintain that, through the bundling of programming, MVPDs have the
option of obtaining valuable programming at discounted prices. In this
regard, such programmers contend that these programming bundles--
offered to both small and large MVPDs--offer substantially greater
value to MVPDs and consumers than standalone offers.
17. We invite comment on the impact of bundling practices. To what
extent does bundling constrain MVPDs from carrying independent
programming? Do smaller MVPDs feel the constraints of bundling more
acutely than large MVPDs because of their limited capacity or limited
resources? Does bundling benefit consumers by lowering prices for
content? Are there any instances of independent programmers being
dropped or not carried at all because of the constraints placed on MVPD
systems as a result of bundling? To what extent do bundling practices,
together with capacity constraints, result in independent programmers
being dropped from MVPDs' channel lineups? Are capacity constraints as
significant as they were years ago? With technological changes, will
capacity constraints be a less significant issue in the future?
18. Recently, the marketplace has trended away from large MVPD
bundles. Some MVPDs have begun offering smaller programming packages,
and programmers have launched a number of online [agrave] la carte and
on-demand program offerings. We seek comment on what effect, if any,
these trends have had on independent programmers. Some MVPDs have
argued that these trends threaten independent programmers. They assert,
among other things, that these trends undermine the economics of large
MVPD bundles that have enabled MVPDs to carry independent programmers
offering diverse and niche programming to consumers. Is there evidence
to support the claims that marketplace trends toward smaller bundles
and [agrave] la carte or on-demand offerings adversely impact
independent programmers or reduce consumer choice in programming?
Alternatively, is there any evidence suggesting that these trends may
provide benefits to independent programmers?
C. Other Marketplace Obstacles
19. In a number of proceedings, independent programmers have cited
other obstacles in their efforts to secure carriage by certain MVPDs or
OTT providers. According to some programmers, for example, some MVPDs,
rather than refusing carriage outright to a programmer (which might
spur a complaint), instead will purposefully fail to respond to
carriage negotiation requests in a timely manner or fail to acknowledge
such requests entirely. Independent programmers further claim that when
MVPDs do respond to carriage requests, they in some cases knowingly put
forth inadequate counter offers. Independent programmers also claim
that some MVPDs have employed a tactic of avoiding negotiations until
just before the expiration of existing carriage agreements, thereby
forcing independent programmers to accept uncertain, month-to-month
carriage arrangements. We seek comment on whether these practices are
being employed, and if so, the extent to which they are being used, as
well as examples that demonstrate the impact of such practices. To what
extent, if at all, do such practices impede entry by or successful
growth of independent programmers? Are there other practices or
marketplace issues (e.g., demands by MVPDs for an ownership stake in
independent programmers, channel placement, or tiering practices) that
may impede the entry or growth of independent programmers? Are there
practices that benefit the growth of independent programmers?
20. We also seek comment on the extent to which some independent
programmers may have leverage over some MVPDs. For example, are there
situations in which an independent programmer may condition any
potential carriage arrangement on carriage by an MVPD of its suite of
programming on distribution to a very high percentage of the MVPD's
customers (i.e., minimum penetration requirements)? How would such
practices affect the ability of MVPDs to offer ``skinny'' bundles that
could be combined with OTT services that could include more diverse and
independent programming? Similarly, we seek comment on assertions made
by some MVPDs that certain programmers insist on tier placement
commitments that compel MVPDs to place entire bundles in the most
popular programming packages. How do programmers typically calculate
the number of video subscribers that minimum penetration requirements
are based on?
21. Consumer advocacy groups and PEG providers contend that MVPDs
do not make PEG programming and information about PEG programming
adequately available to subscribers. For example, they argue that some
MVPDs often do not provide in their on-screen menus or guides basic
information about PEG channels and programs, such as information about
accessibility, channel names, or program names or descriptions. They
assert that the failure by MVPDs to provide the same level of program
description information for PEG channels that they offer for other
programmers discriminates against PEG providers. In other proceedings,
these parties have advocated that the Commission mandate a
nondiscriminatory approach that would require MVPDs to provide PEG
information on their program guides on the same terms and conditions as
other programmers if a PEG programmer supplies program-specific
information. We seek comment on MVPDs' practices with respect to making
PEG programming information available to subscribers. To the extent
that MVPDs do not make this information available, is this for
technical reasons, and, if so, can the technical barriers be
surmounted? Is the Congressionally-imposed prohibition against
editorial control of PEG channels relevant to this
[[Page 10246]]
issue? \9\ What is the source of the Commission's authority in this
area, if any?
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\9\ 47 U.S.C. 533(e).
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D. Possible Regulatory Tools for Addressing Market Obstacles Faced by
Independent Programmers
22. What role, if any, should the Commission play in addressing any
obstacles that prevent greater access by consumers to sources of
independent and diverse programming? Are there other entities--
including other agencies, Congress or private entities--that could play
a role in addressing these obstacles? Can the marketplace evolution
toward greater competition and choice among distribution platforms be
expected to ease any obstacles, or may it exacerbate them in some
respects? Are the Commission's existing regulatory tools adequate to
address any obstacles? Are there actions that we could recommend that
others explore in order to promote programming diversity? Is there a
role for other federal agencies in this review? Are there concerns that
would be appropriate to refer to the Department of Justice and/or the
Federal Trade Commission? \10\ We seek comment on any regulatory or
other approaches the Commission should take to alleviate obstacles to
the distribution of independent and diverse programming.
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\10\ We note that the Commission acts in a manner that is both
complementary to the work of the antitrust agencies and supported by
their application of antitrust laws. See generally 47 U.S.C. 152(b).
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23. We also seek comment on the Commission's legal authority to
alleviate any obstacles. Specifically, we seek comment on whether
section 257 of the Communications Act of 1934, as amended (Act),
provides the Commission with authority to impose regulations aimed at
improving programming diversity. In particular, we seek comment on
section 257(b), which directs the Commission to promote the policies
and purposes of the Act favoring diversity of media voices, vigorous
economic competition, technological advancement, and promotion of the
public interest, convenience, and necessity.\11\ We also request input
on whether Section 616(a) of the Act provides the Commission with the
authority to take action with respect to program carriage practices
that may have an adverse impact on independent programmers.
Specifically, we invite comment on section 616(a)'s mandate that the
Commission establish regulations governing program carriage agreements
and related practices between cable operators or other multichannel
video programming distributors and video programming vendors.\12\ What
other authority does the Commission or others have to alleviate
obstacles to the distribution of independent and diverse programming?
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\11\ 47 U.S.C. 257(b).
\12\ 47 U.S.C. 536.
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III. Procedural Matters
24. Ex Parte Rules. This is an exempt proceeding in which ex parte
presentations are permitted (except during the Sunshine Agenda period)
and need not be disclosed.\13\
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\13\ 47 CFR 1.1204(b)(1).
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25. Filing Requirements. Pursuant to Sections 1.415 and 1.419 of
the Commission's rules, 47 CFR 1.415, 1.419, interested parties may
file comments and reply comments on or before the dates indicated on
the first page of this document. Comments may be filed using the
Commission's Electronic Comment Filing System (ECFS). See Electronic
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
[cir] All hand-delivered or messenger-delivered paper filings for
the Commission's Secretary must be delivered 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. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
[cir] 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.
[cir] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 445 12th Street SW., Washington, DC 20554.
26. Availability of Documents. Comments, reply comments, and ex
parte submissions will be available for public inspection during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street SW., CY-A257, Washington, DC
20554. These documents will also be available via ECFS. Documents will
be available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat.
27. People with Disabilities. To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to [email protected] or call the FCC's
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice),
(202) 418-0432 (TTY).
28. Additional Information. For additional information on this
proceeding, contact Calisha Myers or Raelynn Remy of the Policy
Division, Media Bureau, at [email protected], [email protected],
or (202) 418-2120.
IV. Ordering Clause
29. Accordingly, IT IS ORDERED that, pursuant to Sections 1, 4(i),
4(j), 303(r), and 403 of the Communications Act of 1934, as amended, 47
U.S.C Sec. Sec. 151, 154(i), 154(j), 303(r), 403, this Notice of
Inquiry IS ADOPTED.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2016-04331 Filed 2-26-16; 8:45 am]
BILLING CODE 6712-01-P