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'Black Mark'

Lawmakers, Industry Groups Disagree on FCC Content Diversity Report

Lawmakers and diversity groups disagreed with industry trade groups about a petition for the FCC to require a vast swath of media companies -- including streaming services -- to report diversity data to the FCC. The schism surfaced in comments filed by Friday’s deadline in docket 22-209. “The media and entertainment industry is notorious for excluding people from historically underserved backgrounds,” said a letter of support from 20 Democratic House and Senate lawmakers, including Sen. Corey Booker, D-N.J., and Rep. Joaquin Castro, D-Texas.

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The proposed Content Vendor Diversity Report (CVDR) couldn’t survive a court challenge and would apply to an impractically huge number of companies but leave out important players such as Netflix, said MPA, NCTA, the American TV Alliance and USTelecom. “It would be difficult to understand why any responsible participant in media would object to disclosure of this basic distribution information, particularly when many participants in media tout their contributions to minority advancement and diversity,” said Allen Media, in support of the CVDR.

There’s little statutory support for the FCC to require the data collection, and recent court decisions in the D.C. Circuit and the Supreme Court suggest “the FCC is not free to bootstrap off of vague statutory authority when the number of entities to be impacted is so large,” said TechFreedom. “The Petition fails to cite any provision of the Communications Act that expressly authorizes the proposal,” said NCTA, the American TV Alliance and USTelecom in a joint filing. “There are multiple sources of legal authority for the Commission to establish these modest reporting requirements and to issue an annual programming vendor diversity report,” said Allen Media. “Without direct statutory direction, such a data collection would likely fail to receive OMB approval,” said MPA.

CVDR proponents said making diversity data public would allow consumers to use that information when choosing what companies to patronize. The data collection “would help spur a more competitive programming marketplace that incorporates diverse entrants while also ensuring the viewpoints of people of color are represented,” said the National Urban League. “Such reporting would enhance the FCC’s decision making when implementing its twin goals of promoting competition and viewpoint diversity and allow consumers to make better decisions about which services to purchase,” said Rep. Anna Eshoo, D-Calif. She said the agency should proceed to a rulemaking on the CVDR. TechFreedom said that sort of regime could have “a perverse impact” because larger companies would be better able to pressure their content providers into participating, while smaller companies with less leverage “could end up with a black mark.”

Industry groups said the structure of the content industry is too labyrinthine and diffuse to make the report practical. Most shows are produced by multiple production companies, with multiple owners, said MPA. “IMDb lists five production companies for the Hulu show Only Murders in the Building,” said NCTA, ATVA and USTelecom in joint comments. “Petitioners’ proposal would appear to require Disney to collect and report diversity data for each of these production companies -- and do the same for each of the thousands of other shows and movies that appear on Hulu.”

The scope of the data required would be “unprecedented” and go beyond any other existing FCC requirements, said NCTA, ATVA and USTelecom. Would Google “have to report on the diversity of employment on all 51 million YouTube channels, since they are all ‘content vendors’ for YouTube?” asked TechFreedom. Because the petition would limit the requirements to media companies that are in some way affiliated with FCC regulatees, the data collected wouldn’t include Netflix, Apple or Roku, said the joint trade group comments: “Any report purporting to say anything about the video marketplace without covering these major participants would be of questionable value.”

The FCC “should have been collecting these data for years and addressing the disparity between the representation of minorities in the population and their minimal ownership of media and content,” said Allen Media. The burden of collecting the data would be “de minimus,” said children’s TV network Kids Street. FCC licensees “could readily accomplish the associated requirements through an automated webpage made available to programmers.” The onerousness of the collection shouldn’t be a reason to forego the review, said the National Diversity Coalition and National Asian American Coalition, in joint comments.

Collecting the diversity data “will help paint a more complete picture of whether programming that is currently carried is reflective of the nation’s diversity,” said the National Urban League. “Publicly stated support of diversity, equity and inclusion initiatives in media should be followed by more than mere words on a corporate webpage,” said minority-owned network Splex One.