Differing Views of MVPD Market Emerge in Video Competition Replies

Getting affordable video content under reasonable terms is an increasing struggle, with even large MVPDs indicating video services are a loss leader, Incompas commented in docket 16-247. The group urged the FCC to address the hurdles new entrants and smaller MVPDs face in getting video programming access via the retransmission consent regime. It said with programmers "perhaps emboldened" by the FCC's decision that the good-faith negotiating framework doesn't need reform (see1607140047), some MVPDs have seen last-minute renewal proposals with "intractable terms and conditions" proposed within weeks of the expiration of the existing agreement, and end up capitulating. It urged the FCC to require a six-month negotiating window and to find that refusal to take part in regular agreement discussions would be a good-faith standard violation. Incompas also said any broadcaster-proposed renewal should include justification of rate increases "based on direct and legitimate economic factors." Incompas pushed the agency to look at practices for multi-dwelling units, such as exclusive marketing agreements and revenue sharing demands that incumbents have used to keep out competitive video and broadband services.

Retrans rules favor broadcasters over MVPDs, leading to practices like bundling, that mean skyrocketing consumer costs, Verizon said. It asked the FCC to reform the retrans regime and put in place additional regulatory protections for MVPDs. The telco recommended the FCC find a lack of good-faith negotiating when broadcasters demand an MVPD carry affiliated programming in order to get retrans consent for a station signal and when they expand programming blackouts to customers of an MVPD's affiliated internet access services. The company said the FCC should adopt rebuttable presumptions that exclusive contracts for cable-affiliated regional sports networks are unfair under Communications Act Section 628(b) program access rules.

Elimination of cable rate regulation in an effective competition order was a good first step, but the agency should look next at rescinding or loosening its program carriage, program access, leased access and multiple dwelling unit-related regulations, Comcast said. Given the rapidly changing video market, new rules would be unjustified, inconsistent with congressional intent and "compound the consumer harms and marketplace-distorting effects associated with existing outmoded legacy regulations," Comcast said.

Retrans works and doesn't need fixes or tweaks, NAB commented in response to what it said was "a biased and inaccurate view of the marketplace" by those pushing for changes. Arguments about the rapid rise in fees ignore that broadcasters began successfully negotiating for those only in the past decade, NAB said, also calling arguments against bundling an "old chestnut." It said no one has shown proof that what broadcasters are being paid is unfair, that the payments are on the low side proportionally to nonbroadcast networks' carriage fees, or that stations charge too-high rates in relation to their ratings.

The New England Sports Network urged the FCC to explicitly recognize that non-TV platforms "in many settings ... constitute a substitute or replacement for regular TV sets." The RSN said it made the same assertion for the agency's 17th video completion report but the report cited NESN while holding the exact opposite.