By Barry Skidelsky * The Federal Communications Commission released a Notice of Proposed Rule-Making on April 19, 2024 (FCC 24-44, available at https://docs.fcc.gov/public/attachments/FCC-24-44A1.pdf), which begins with an obvious statement: “Video consumption has increased in recent years, expedited in part by changes in watching brought on by the pandemic.” The FCC then elaborates that “[I]n light of this increased demand, we launch this proceeding to understand challenges related to distribution and supply -- especially as it relates to independent video programming.”
One of the Commission’s primary statutory objectives with respect to multichannel video programming is to foster a diverse, robust, and competitive marketplace for the delivery of such programming. While recognizing that competition among distributors of video programming continues to evolve, and that consumers today have more video programming platforms from which to choose than ever, the FCC also notes that stakeholders have continued to raise concerns that certain marketplace practices by content distributors hinder independent video programmers from reaching consumers.
Specifically, independent programmers have contended that their ability to thrive in the marketplace and reach consumers today depends on their ability to negotiate with and secure carriage from multichannel video programming distributors or online video distributors. Yet, despite the changes in the way that consumers today access video programming, independent programmers have consistently asserted over the past several years that certain practices by incumbent cable operators and other content distributors have impeded their ability to reach consumers across all video platforms -- leading to less competition and fewer choices for viewers.
Thus, through this NPRM, the FCC has initiated a new proceeding to seek comment on the current state of the marketplace in the United States for diverse and independent video programming, including about the obstacles faced by independent programmers seeking carriage on MVPD and online platforms, about current bundling practices, and about how this impacts consumers. In addition to seeking comment on those general concerns, the FCC seeks specific comment on the NPRM’s rule-making proposal to prohibit two types of contractual provisions in program carriage agreements between independent programmers and MVPDs. i.e.: (i) most favored nation (MFN) provisions, and (ii) unreasonable alternative distribution method (ADM) provisions. More details can be found in the NPRM.
If you or anyone you know may be interested in filing comments with the FCC about this, either individually or jointly with other stakeholders, please contact me immediately to confidentially discuss. Comments are due within 30 days of the NPRM’s publication in the Federal Register.
* Barry Skidelsky is an accomplished Attorney, Consultant, Arbitrator and Mediator with a broad based and multi-disciplinary practice, who has a personal background, particular interests and expertise in Entertainment, Media, Telecommunications and Technology. A former broadcasting executive, radio and TV station broker, FCC divestiture trustee and bankruptcy trustee, Barry is a former Chair of the NYS Bar Association’s Entertainment Arts and Sports Law section, of its Television and Radio Committee, and of the Federal Communications Bar Association’s NY Chapter (whose members practices, in part, involve matters before the FCC in Washington DC).
Barry also previously successfully served as in-house General Counsel and Corporate Secretary for several PE/VC backed emerging growth companies, including at an Internet Service Provider and a Competitive Local Exchange Carrier, as well as at a publicly traded digital marketing/advertising tech company.
Also a Berklee College of Music trained jazz pianist who is fluent in Spanish and Morse Code, Barry provides valuable assistance with a wide range of creative, business and legal matters to a mix of domestic and international clients, including diverse entertainment, arts and sports talent, entrepreneurs, high net worth individuals and their families, privately held and/or publicly traded businesses, investors, lenders, nonprofit organizations, and other lawyers or law firms of all sizes. Currently and actively seeking new opportunity and challenge, and appreciative of any referrals, Barry can be reached by email bskidelsky@mindspring.com or by telephone at 212-832-4800.