Public Knowledge is advising the FCC to take a more nuanced and contextual approach to limiting what it concludes are anticompetitive programming contracts.

That came in comments on the FCC's program diversity Notice of Proposed Rulemaking.

A politically divided FCC back in September voted to propose prohibiting unconditional most favored nation (MFN) and "unreasonable" alternative delivery method (ADM) clauses, which independent programmers and smaller distributors have said hinder access to diverse programming.

Public Knowledge says that "it has become increasingly obvious that incumbent MVPDs hold back tomorrow’s competition through economic coercion, forcing programmers to agree to limit who they sell to and how they sell it," so it is all for the FCC doing something to address that.

but it also says that given the complexity of the marketplace, it is tough to conclude that any particular contract provision is per se unreasonable, or whether a programmer per se lacks sufficient leverage in negotiations with video providers.

"It may be the case that particular provisions are a result of balanced negotiations, reflecting the interests of both parties. It may also be the case that some kinds of contractual provisions are so likely to harm smaller creators or consumers in the short term that they should be prohibited even if some of them may carry some theoretical, longer-term benefit," the group says.

"Therefore, the Commission should consider a contextual, rather than bright-line, approach to enforcement of this proposed rule. Focusing on provisions that are a result of large MVPDs exerting their negotiating power over programmers will allow the Commission to open the idea marketplace without being overly prescriptive."

Larger MVPDs argue the marketplace is fine and the FCc, now headed by Republicans who dissented from the NPRM, should terminate the proceeding. Smaller MVPDs say the FCC should indeed take action on the contracts, but also argue for finessing the approach, and say the FCC should first take aim at program bundling, which they say is an even bigger problem.

Small and midsized cable operators have banded together with independent programmers to tell the FCC that reining in most favored nation (MFN) clauses and alternative distribution method (ADM) clauses is all well and good, but that it should tackle program bundling first in its effort to promote access to independent and diverse content. 

That came in a filing on the FCC's Notice of Proposed Rulemaking stemming from its program diversity inquiry.

A politically divided FCC back in September voted to propose prohibiting unconditional MFNs clauses and "unreasonable" ADMs.

Joining with ACA in the filing were independent programmers MAVTV Motorsports Networks, One America News Network and AWE, and RIDE TV.

They said that while they were generally supportive of the MFN and ADM restrictions, focusing on those rather than channel bundling was like trying to put out a four alarm fire with a cup of water.

They said that while those are a problem, in many cases they can't get deals, good or bad, because smaller operators don't have the money or bandwidth after having to strike bundled deals for channels they don't want forced on them by larger programmers with must-have programing that they tie to other "little-watched and overpriced content."

As to the MFNs and ADMs, the FCC has proposed prohibiting all MVPDs from entering into unconditional MFNs with independent programmers. they point out. Instead, they want the prohibition to all to large MVPDs with any programmer, while allowing small MVPDs to enter into them. They also want the FCC to look into unconditional MFN's in retrans deals, saying that such clauses require them to carry multicast channels they don't want in order to get ones they do.

It is unclear whether the FCC under new management will take action on the NPRM.

The FCC has yet to vote on a final order, and in the meantime a new sheriff has arrived.

The two commissioners who dissented from that decision are now in the majority, with senior Republican Ajit Pai having been tapped by President Donald Trump as the new chair.