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Docket 24-115 Replies

Programmers and MVPDs Continue Assailing, Defending Contract Terms

Multichannel video programming distributors (MVPDs) and independent video programming interests remain miles apart over the FCC's proposed restrictions on carriage agreement terms. In reply comments (docket 24-115) posted Tuesday, MVPDs reiterated their assertions (see 2406100005) that most-favored-nation (MFN) and alternative distribution method (ADM) contract terms ultimately benefit programmers and viewers, while programmers said such terms are smothering their ability to compete.

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The booming supply of and demand for video programming comes from a hands-off regulatory approach to streaming, which is a reason to avoid regulating it, Comcast said. Arguments in the record against MFNs "boil down to letting programmers give special price and other concessions to [online video distributors] ... while sticking MVPDs and their customers with the bill," Comcast added. MFN terms give MVPDs protection, and without it they are less likely to carry many indie networks, said Verizon. The MFN ban also unfairly applies just to MVPDs but not big online video distributors, Verizon added, even though MVPDs "have historically carried significantly more diverse, independent programming than OVDs." It said that the Communications Act's sections 616(a) and 628, which the FCC cited as giving it legal authority for its indie programming proposals, lack such authorization, and that the legislative history confirms Congress "did not intend for these statutes to supply free-wheeling authority to the Commission to regulate video distribution competition generally."

Doing nothing about ADMs and MFNs "means that independent and diverse voices are marginalized, and innovation is stifled" due to indie programmers lacking leverage to resist such terms that big MVPDs force on them, said American Independent Media. Contrary to MVPD arguments, MFNs and ADMs "ensure a permanent state of under-distribution and economic barriers to access" for indie programmers, AIM said. It added that indie programmers have made almost no inroads into virtual MVPDs' channel bundles. Programmers Aspire, Up and Ovation said the record is rife with comments about MFNs stopping indie programmers from getting distribution agreements with MVPDs and virtual MVPDs.

Along with doing away with MFNs and ADMs, the FCC also should consider early termination fees that MVPD subscribers pay as chilling competition and thus the range of independent voices available to the public, said Rural Media Group. 2042 Media said arguments that indie programmers can distribute via YouTube or other free, ad-supported streaming TV platforms aren't realistic. It said it can't distribute its networks for free because of the MFNs it has with its affiliates as well as due to economic realities.

Multiple programmers argued addressing MFNs and ADMs is well within the FCC's authority.

Canada's restrictions on MFNs and unreasonable ADM provisions "have been beneficial to sustaining the commercial viability of independent programming services," the country's Independent Broadcast Group said. Barring MFNs has meant "greater latitude for independent programming services to enter into different commercial arrangements with different MVPDs across the Canadian market," it said.

Pointing to calls for retransmission consent reform, NAB said there's no proof of a relationship between retrans consent and MVPD carriage of independent programming.