FCC, Programmers Far Apart on Set-top Proposal, Despite Overtures
The FCC is trying to find a way to make its set-top box proposal more palatable to programmers, but they may not be taking the bait, said attorneys on the programming and pay-TV side in interviews this week. The FCC initially wasn’t expecting the amount of pushback against the set-top proposal from content creators, several industry officials told us. Now, supporters of the set-top plan and the commission are looking for ways to assuage the programmer concerns, attorneys and industry officials told us. It’s unlikely the commission can create a set-top plan that will appease programmers and also accomplish the FCC’s goal of making pay-TV content available on third-party boxes, a content company executive said.
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“Chairman Wheeler appreciates the thoughtful and constructive comments we’ve received on this issue and he looks forward to continuing to work with stakeholders and his colleagues at the Commission to find the best path forward,” an FCC spokeswoman emailed us. Many industry officials expect the set-top rules to be voted on at the August commissioner meeting, they told us.
The initial set-top proposal gave “short-shrift” to programmer concerns, an industry official familiar with the set-top proceeding told us, a point echoed in numerous filings from programmers in docket 16-42. With the strong blowback both from the industry and legislators, the commission has recognized it needs to pay more attention to concerns about third-party boxes altering advertising and channel positioning, the official said. An appropriations rider that would delay any new set-top rules until after a diversity study is gaining traction in the House (see 1606020070).
In recent letters to legislators on programmer complaints about the set-top plan, Chairman Tom Wheeler asked for suggestions for language that would assuage concerns about copyright protection and the security of advertising. “If there is other language necessary to ensure copyright protections, we are interested in seeing such language,” Wheeler wrote to Rep. Yvette Clarke and other legislators. Public Knowledge, one of the most vocal advocates of the FCC plan, also offered an olive branch in reply comments on the set-top proposal. “The FCC should, if only as a matter of ‘belt and suspenders’ policymaking, clarify that certain behaviors should not be permitted by competitive apps and devices, in order to address legitimate programmer or programming-related concerns,” PK said. The Writer’s Guild of America, West also proposed compromise rules in a meeting with Media Bureau staff and FCC Chief Technology Officer Scott Jordan Tuesday.
WGAW proposed requiring third-party box makers to respect the terms of multichannel video programming distributor advertising agreements, and be bound by promises not to alter programming or advertising. PK has proposed that third parties be required to keep channel lineups intact and not alter ads.
Such ideas are similar to proposals by Wheeler that involved requiring that third-parties certify they wouldn’t alter MVPD content, a content company executive pointed out. That sort of language in a final set-top rule isn't going to win over programmers, the executive said. Since the FCC proposal hinges on third parties having access to the MVPD content stream, it’s unlikely that a compromise that would satisfy programmers and set-top proponents exists, the executive said. In a recent meeting with Commissioner Mignon Clyburn, Viacom and BET said (see 1605310063) the FCC plan “would diminish or eliminate the effectiveness” of licensing agreements’ in protecting content. The FCC and programmers remain far apart on the matter, one programming official told us.