Rival Calls for New Video Rules, Deregulation Abound as Competition Report Gets Underway
Video industry groups and others put forth proposals including adding "standstill" rules and eliminating network nonduplication and syndicated exclusivity for video market rules changes as part of FCC preparation of its 19th annual video competition report. Tuesday was the deadline for docket 17-214 comments, with replies due Nov. 9 (see 1708250052). The Ajit Pai FCC is generally expected to avoid further video regulation (see 1703170017).
Commenters urged the FCC to ban tying of programming. NTCA urged a prohibition on "broadband tying," where programmers pay fees for "must-have" video content based on the number of broadband subscribers served regardless of whether those subscribers also take video services. NTCA urged prohibitions on programmers requiring forced tiering of content by small MVPDs and suggested rules letting small providers request the same prices and conditions as other retrans consent agreements that broadcasters have signed. It said the FCC should require broadcasters as a license condition to publicly disclose the lowest fee they charge MVPDs before any volume discount.
The FCC needs to ease the route for smaller MVPDs and new entrants to get access to video programming by renewing its examination of the retrans regime and determine whether video programmer practices hurt the market, Incompas said. Verizon similarly pushed for retrans rules reform, saying the current regime and "unreasonable programmer practices" like forced bundling are driving rapid inflation of consumer costs. It said the agency should consider expanding a blackout to include customers of an MVPD's broadband customers to be a lack of good faith. Verizon -- along with the Free State Foundation -- also urged elimination of the network nonduplication and syndicated programming exclusivity rules.
Smaller and new-entrant MVPDs face big competitive hurdles such as state cable franchising laws that require "excessive" build-out obligations by local franchise authorities that they wouldn't impose on their own, ITTA said. The group complained of the threat of blackouts of marquee programming and of having to accept limits on subscribers' use of lawful devices or functionalities to access programming, and urged "long overdue" but unspecified reform of video rules.
Some pushed for continued deregulation. The report should confirm vigorous competition and "directly address its implications," NCTA said. That would entail the agency identifying statutory and regulatory provisions that were a stopgap until competition developed and either eliminate them or recommend Congress do so. It said any regulatory provisions not based on lack of video competition should be evaluated to ensure the concerns behind them remain valid, and that they ensure regulatory parity. It said platforms and search engines like Google, YouTube and Amazon should be monitored to ensure continued video competition. Comcast urged eliminating legacy regulations made superfluous by what it said was a highly competitive video marketplace, such as "a blizzard of costly and burdensome notice regulations."
NAB said the video market is rife with competition, saying that's a chief reason for ongoing MVPD subscriber losses. It noted viewers' increased interest in TV Everywhere offerings and urged the FCC to OK adoption of the ATSC 3.0 standard.
Some commenters urged the FCC to require "standstills" that allow continued carriage of a station signal as long as parties are in good-faith negotiations for renewal. Dish Network suggested the FCC require baseball-style rules arbitration in retrans impasses. It listed actions that should be a per se violation of good-faith rules, such as online blocking, forced bundling, blackouts before marquee events or around natural disasters, ceding negotiation rights to other parties, restricting out-of-market signals during disputes and charging for subscribers who don't get video programming. The Chairman Tom Wheeler FCC considered and rejected many of those suggestions (see 1607140047).
"The entire edifice" of compulsory licenses, networks and affiliates and retrans consent needs to be rethought given technological and consumer habit changes, Public Knowledge said. If online video providers are MVPD competition, they need to be subject to the same rules -- such as emergency alert requirements -- and have similar access to programming, it said.
To avoid blackouts before marquee events, broadcasters should be required to submit a contract proposal at least 75 days before expiration of an existing contract, WTA said. It said small MVPDs need protections from the fallout of any ATSC 3.0 transition such as guarantees MVPDs don't lose legacy signals during the transition and requirements ATSC 3.0 and legacy signals get negotiated separately in retrans consent talks.
The FCC should investigate and ban broadcasters setting minimum penetration requirements without a lifeline carve-out, the American Cable Association said. It repeated its call for changing the definition of a programming buying group (see 1708250017). ACA urged the FCC to open a proceeding to determine if there's a need to renew or extend the Comcast/NBCUniversal program access conditions given expiration next year.