Low-Key Lobbying on Diverse Programming NPRM Seen
With the FCC set-top box proceeding an existential threat in the eyes of some pay-TV operators (see 1609190048), lobbying on the independent and diverse programming rulemaking on that also is on the Sept. 29 commissioner meeting preliminary agenda has been and will likely remain relatively quiet this week, multiple cable industry officials and insiders said. If an order comes out of the NPRM, they said, there undoubtedly will far more intense lobbying by multichannel video programming distributors and programmers.
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Along with the set-top proceeding, MVPDs also have been busy with the broadband privacy and business data services proceedings, leading to less activity than the diverse programming NPRM likely would have attracted otherwise, more than one cable industry expert told us. There's also a question of where the NPRM will go since Chairman Tom Wheeler likely won't be around to shepherd it, one lawyer with cable clients said.
Multiple cable industry officials also said the NPRM looks like a trade-off to Commissioner Mignon Clyburn in order to secure her support on other things, which also points to a wait-and-see approach for the cable industry.
Some small programmers and allies are pushing for changes to the diverse programming NPRM. In a series of ex parte filings posted Monday in docket 16-41 (see here, here and here), the National Hispanic Media Coalition (NHMC) said General Counsel Jessica Gonzalez, met with Wheeler aides and aides of Clyburn and Commissioner Jessica Rosenworcel to push again for the FCC to include in the NPRM questions about whether the agency itself "has engaged in past conduct that has perpetuated racism and sexism and stymied diverse programmers in the market" (see 1609080083). NHMC also said it was backing NAB in that group's criticisms of American Cable Association lobbying for rules restricting programmers from negotiating for carriage of Spanish-language or urban interest programming on rural systems. ACA said it used such niche programming as an example of an argument against forced bundling of programming on smaller cable operators (see 1609010031). ACA, in a separate ex parte filing posted Friday, said it met with Rosenworcel aide Marc Paul to again push for a broader NPRM that includes such topics as forced bundling and penetration requirements.
The NPRM should look at "issues more fundamental to the survival of independent programming generally," such as bundling and how it crowds out smaller programmers, Fuse Media and Writers Guild of America, West said in a different ex parte Friday. That filing recapped a phone conversation with Clyburn aide David Grossman. They also said any definition of "independent" programmers needs to be crafted to ensure relief is precisely targeted. And they said the FCC has statutory authority to tackle bundling issues under Title VI provisions and through "incentive-based regulatory constructs" of conditions on distributors seeking regulatory relief or FCC action. The cable official said major pay-TV operators won't spend significant time lobbying on changes to the NPRM, saving their political capital for the set-top proceeding, which is more fundamental to the industry's business model. The set-top proceeding is an order vs. the diverse programming rulemaking, meaning there's still time for changes later, the cable official said.