Chris Ruddy, head of conservative cable news channel Newsmax TV, said he believes Democratic Federal Communications Commission nominees Jessica Rosenworcel and Gigi Sohn are fair-minded people of integrity who deserve confirmation.

Rosenworcel is acting chair and will be chair if confirmed. Sohn would be a new addition, the third Democratic commissioner on the five-member panel, which is currently tied at 2-2. As a former top adviser to Obama-era FCC chairman Tom Wheeler, Sohn backed access to distribution channels for independent programmers, something that clearly resonates with Newsmax.

Ruddy, CEO of Newsmax Media, said he had dealt with both nominees on policy issues, from which he had drawn those conclusions about fairness and integrity.

Rosenworcel has also signaled to Congress she will be taking a fresh look at the competitive marketplace and how much access independent programmers can get, through both traditional and over-the-top channels.

“Increasingly, independently operated cable news channels like Newsmax are being sidelined in favor of a small number of mega-corporations who dominate the channel lineups, forcing upon consumers expensive and little-watched networks,” Ruddy said. “It’s bad for the public interest and dangerous for democracy.

“While I don’t always agree with the nominees on many policy matters, Newsmax fully supports the commission’s mandate to promote diversity, localism, and competition in the marketplace,” Ruddy added. “Newsmax believes both nominees are committed to that mandate and I urge the Senate to confirm the nominations of Jessica Rosenworcel and Gigi Sohn.”

Sohn also got support from another conservative cable channel and another strange bedfellow for a progressive Democrat: One America News Network‘s Charles Herring. ■

Acting Federal Communications Commission chairwoman Jessica Rosenworcel has pledged to re-examine the marketplace for video programming and take “appropriate action.”

She made that promise during her nomination hearing in the Senate Commerce Committee Wednesday (Nov. 17).

During her questioning, Sen. Amy Klobuchar (D-Minn.) said that from her work at the Judiciary Committee (she chairs the antitrust subcommittee), she had heard concerns from independent programming networks “regarding the negotiating tactics of some of the video distributors.” Independents have long complained that they lack the leverage to get crucial carriage on large distributors.

The senator asked if Rosenworcel would work with Klobuchar and her colleagues “to re-examine these practices and take appropriate action to protect the public interest.”

Rosenworcel said that if confirmed, she would do so.

Rosneworcel has long been concerned about program-access issues. Back in 2015, when the FCC sought input on that issue, she said: “Time and again we hear that independent programmers face a daunting challenge securing ‘real estate’ on cable and satellite systems. These systems still dominate our video experiences — and securing carriage can be a prerequisite to build the viewership that supports investment in more diverse content.”

If she is confirmed, designated chairman and gets the necessary Democratic majority, Rosenworcel will have both the tools and the impetus to follow through on that re-examination. ■

FCC commissioner Mignon Clyburn has called on agency chairman Tom Wheeler to launch an inquiry into the program access and carriage rules and ongoing barriers to independent and diverse programming in the wake of the FCC's decision to approve the AT&T/DirecTV deal.

Those are the rules meant to ensure nondiscriminatory access for distribution outlets to programming and programmers to distribution outlets.

Clyburn voted for the deal and said she believes in the public interest benefits of the conditions and commitments on broadband deployment and affordable stand-alone broadband for lower income residents.

But she said she is concerned with the potential impact of the deal on smaller carriers and independent programmers given that the combined company will have over 25 million video subs.

The American Cable Association, in particular, has expressed concerns about access to  programming and the price of that programming and sought conditions on the deal to protect against possible abuses.

While Clyburn said that the FCC analysis concluded the deal would not demonstrably worsen those "challenges," she said it was time to "reevaluate our program access rules" and their impact on diverse and independent programmers.

Not surprisingly, the American Cable Association was pleased.

"American Cable thanks Commissioner Clyburn for calling on Chairman Wheeler to initiate a proceeding regarding the FCC's program access rules to evaluate their effectiveness and to identify whether there are ways to reform the rules that would provide a level playing field to enable smaller operators to remain competitive in the market," said ACA President Matt Polka in a statement. "If the FCC is going to rely upon the program access rules rather than the ACA's proposed conditions to mitigate the incremental vertical harms to competitors of new AT&T owning four 'must have' regional sports networks, then the rules must work as Congress intended."

ACA called on the FCC to institute reforms ASAP so they could be a "backstop" to the deal, particularly AT&T's ownership of Root Sports Network.

ACA is concerned that the deal will result in higher prices for rivals' access to DirecTV's four owned RSNs, which operate as Root Sports Northwest, Pittsburgh, Rocky Mountain and Southwest, a point it made in comments to the FCC last month.

Similar concerns were raised earlier this month by Houston cable provider enTouch Systems.

According to multiple sources, the FCC is working on an item that would define an online video provider (OVD) that delivers a linear stream of programming as an MVPD, similar to a cable or satellite operator. That means it would have access to content through the FCC's program access rules, but also have to negotiate retransmission-consent with broadcasters.

The idea is that over-the top providers would have an FCC-enforced access to vertically integrated programming.

The item, which could be circulated as early as this week, reportedly asks what other MVPD rights and responsibilities beyond access and retrans carriage should extend to over-the-top providers.

An FCC spokesperson had no comment. But an FCC official speaking on background confirmed that the item proposed adopting a technology neutral definition of an MVPD.

That would mean reversing a tentative, bureau-level conclusion in the Sky Angel program-access complaint that having a facilities-based transmission path was necessary to be an MVPD. The FCC tentatively concluded that an MVPD has to have control of both the content and the transmission path—copper, fiber, satellite signals to be delivering a channel—and that an OVD distributor lacks that path since it does not control a facilities-based channel to deliver it.

The NPRM tentatively concludes that the entity would not need to own the transmission path to be an MVPD as long as it provides a continuous linear stream of prescheduled programming--not like a Netflix or other on-demand video programmer without a linear lineup.

The FCC had been considering giving OVDs a path to MVPD status through a marketing or joint venture with ISPs, but there appears to be no opt in or opt out status, said the FCC official, adding that you either are or are not an MVPD keyed to delivering that linear lineup.

Sky Angel, which moved its linear service to over-the-top delivery, suspended operations in January 2014, something it pointed out to the FCC in comments in June, explaining that it could not compete with traditional MVPDs withoug access to programming afforded MVPDs via FCC program access rules.

If OTT's gain MVPD status, they would secure access to TV stations via must-carry and retrans rules, but would also be subject to program-carriage requirements.

Such a decision could also insure that online video distributors have access to must-have video networks that would allow them to be competitive with traditional video suppliers like cable and satellite.

The FCC signaled in the Comcast/NBCU deal that it expected over-the-top video to become a competitor to traditional MVPDs going forward and, therefore, included conditions requiring the company to make its programming available to OTT providers on nondiscriminatory terms and conditions.

Giving OTTs MVPD status would also appear to mean would-be online TV station distributor Aereo could qualify for a compulsory license and have a path forward. But Aereo would also have to negotiate-retransmission consent payments with TV stations if it wanted to carry stations that did not opt for must-carry.

But as with the network neutrality rules NPRM, the FCC will be collecting content and the item is far from set in stone.

 Sky Angel, the former provider of predominantly religious pay Internet-protocol television services, filed its program access complaint against Discovery Communications in 2010 after Discovery decided to withdraw its programming from the Sky Angel IPTV service. Sky Angel had converted the service to IP delivery from direct-broadcast satellite in 2008. However, as the FCC acknowledged in seeking input on the definition of an MVPD in 2012, "the interpretation of these terms has legal and policy implications that extend beyond the parties to this complaint."

The National Cable & Telecommunications Association has argued that a transmission path is necessary to be an MVPD.

It told the FCC in comments on Sky Angel that the 1992 Cable Act was clearly intended to promote "facilities-based MVPD competitors," which would require facilities.

To define it otherwise, they say, would result in "expansive regulation of the Internet" and conferring rights an obligations on online entities the FCC does not track or license, may not have physical facilities in the U.S. and which "were never intended to be the subjects of such regulations."

Broadcasters have argued that if the FCC does give OTT's the rights to carry TV stations signals, they must also be subject to retransmission consent and program exclusivity rules.