The Multicultural Media, Telecom and Internet Council (MMTC) is telling the FCC not to limit rules prohibiting digital inequity only to discriminate or to conclude that because it is available, it is accessible.

That view of discrimination is a different tack from AT&T and wireless ISPs, which told the FCC this week that intent should be a determining factor.

Both MMTC and AT&T were filing comments in the FCC's congressionally directed proceeding, which must come up with regulations preventing discrimination based on "income level, race, ethnicity, color, religion and national origin."

"[I]f the Commission were to adopt rules that only looked to the intent of the actor and their disparate treatment of subscribers, the Commission would capture a very small subset of the discrimination that subscribers often face," MMTC told the FCC.

MMTC also wants the FCC to take a broad view of "equal access" that goes beyond technical quality of service -- speed, latency, etc. --to non-technical issues that extend to evidence of disparate treatment.

MMTC says the FCC should define the statute's equal opportunity to subscribe from a consumer perspective and should look beyond whether comparable services on comparable terms and conditions are available.

MMTC also says mere "availability" is not equity if the cost prohibits its adoption in low-income or minority neighborhoods.

"Given that there are multiple barriers from multiple actors preventing Americans from actually accessing the internet, the Commission must be careful to not conflate broadband availability with broadband access," MMTC says.

MMTC says when the FCC looks at the "other quality of service metrics" that must be equitably provided, according to Congress, it should look at procurement, transactions and advertising policies.

The group also says the FCC needs to act with dispatch. "All told, it may be several years before final rules in this proceeding become effective, unless the Commission acts expeditiously," it warns. "It is important to complete this rulemaking with a sense of urgency, as it will create important protections for those who are being left behind as the world moves more and more online."

How quickly the FCC can act is somewhat circumscribed by process requirements, including vetting the responses to its inquiry, then deciding on whether to proceed on a rulemaking, which must then be noticed and public comment solicited, as MMTC recognizes. Then there is the Office of Management and Budget, which must review and sign-off on any rules that require additional data collection. ■

A coalition of diversity groups has asked Congress to pass HR 5056, the MVPD Tax Credit Program, which would give a tax credit to MVPDs and their over-the-top streaming counterparts for carrying diverse, including minority targeted, independent programming.

The bill was introduced by Rep. Yvette Clarke (D-N.Y.).

In a letter to House leadership, the groups, which included the Multicultural Media, Telecom & Internet Council and the National Urban League, "implored" them to pass the bill, which they said would help level the playing field for indies in the pay TV business, including on OTT platforms, such as You Tube TV, Hulu, and Sling.

Also Read: Starks: Broadcast Ownership Report Still Shows Diversity Deficit

Specifically, Clarke's bill provides that:

"For each qualifying carriage agreement with eligible independent programmers, an MVPD will be eligible for a tax credit equal to 1) the lesser of the net license fees paid or incurred by the MVPD or 2) the product of $0.10 multiplied by the number of subscribers per month receiving the independent programming provided under such agreement. 

"Programming credits will not exceed the product of $0.10 multiplied by 3 times the average number of an eligible distributor’s subscribers in a given taxable year. Tax credits received under this Act cannot also be claimed as a tax deduction."

FCC commissioner Mignon Clyburn said she expects the commission will soon launch a notice of inquiry (NOI) on access to over-the-top distribution channels by independent programmers.

An NOI is an investigation and might or might not result in any regulation.

That came at an FCC commissioners panel at the Multicultural Media, Telecom & Internet Council's annual Broadband and Social Justice Summit in Washington Thursday.

She said that while OTT offers a lot of promise and optimism on the surface, from those she has talked to, “the same old legacy issues” about getting projects greenlighted and access to distribution channels remain. She said she did not know whether it was an issue the FCC could solve, but it would be a platform for discussion and put attention on the issue.

She said her audience would hear about the NOI in the next few weeks.

In an impassioned speech to MMTC the day before, consultant and former top Clinton telecom adviser Larry Irving lamented the dearth of black or Latino producers in the new crop of online originals from Netflix.

Neither Republican commissioner Ajit Pai or Michael O'Rielly professed to know that an NOI was contemplated but said they would be interested in seeing it.

Pai said the FCC didn't need to be in that space and that there were plenty of opportunities to get content on the Web and profit from it.

Clyburn said there was a difference between getting on the Web and making money. She said it was one thing to upload a video and another to make a living. She said there were a lot of Internet stars but asked how much they were "truly making."

"Are there bottlenecks or barriers to entry?," she asked. "These are some of the things that I hope we will talk about" in this inquiry, as well as who should address bottlenecks, "if anyone."

O'Rielly suggested that some YouTube stars were making a lot more than the commissioners on the panel. As to the legacy issues of access to distribution channels, O'Rielly said that YouTube in terms of getting programming out "completely eviscerates a number of the current models that have been so problematic in the past." He said it is no longer how some pilot can be greenlit on a broadcast station. Actually, it is networks that do that, but his point is that with the Web, he can do the pilot from a garage or basement and people can "see it and like it and I can make money out of advertising."

Pai said he was inspired by the people who were bypassing the legacy models to get their content online. He said he had been told by people "across the country" that her OTT proceeding "would be a terrible thing for minority programmers" because it would "lock us in with the big guys and establish legacy regulations over this really nascent space."

An FCC spokesperson would not confirm or deny the NOI, but pointed out that Clyburn had called for an NOI on barriers to diverse programming at the tiome of the FCC's approval of the AT&T/DirecTV deal.

Clyburn backed off a little bit, saying she was "hopeful" there would be an NOI, but appeared confident the NOI was coming.

FCC chairman Tom Wheeler has proposed defining some OTT providers as MVPDs so they will have access to programming, but the NOI would look at the other side of the equation, access by independent programmers to online distribution.