Broadband providers are telling the FCC in no uncertain terms to reject calls by cable programmer Fuse Media and public advocacy groups to mandate that those providers collect data on the diversity of the video content vendors they buy programming from, including for their owned or affiliated streaming services which, they point out, are not regulated by the agency.
And as for unaffiliated streaming companies like Netflix, Apple TV or Roku, they argue that without putting diversity data collection requirements on them, too, the Federal Communications Commission certainly won't be getting a view of the marketplace.
NCTA-The Internet & Television Association and USTelecom made those points in comments on the petition.
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“Any report purporting to say anything about the video marketplace without covering these major participants [Netflix, Apple TV, etc.] would be of questionable value,” the groups told the FCC. “[I]t would be inappropriate to place regulatory burdens only on certain online providers that happen to be affiliated with FCC regulatees.”
But NCTA and USTelecom aren't looking to have the FCC put diversity reporting requirements on any of the major participants.
”Nothing in the Communications Act authorizes the Commission to collect the broad sets of proposed data from the entities it actually is authorized to regulate or those regulatees’ affiliates that are not regulated by the Commission,” they said, “much less from third-party programming vendors over which the Commission has no authority to mandate such data collections.”
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Back in May, Fuse Media, an independent programmer which offers content meant for younger, multicultural viewers, led groups petitioning the FCC to collect the content diversity data, including from streaming services owned by media companies licensed by the regulator. The groups argued that the FCC’s failure “regularly to collect and report on data regarding the demographic diversity of vendors providing one of the most critical inputs to the video marketplace: content,” did not square with its charge to promote competition and diversity in the video marketplace.
But NCTA and USTelecom told the FCC such a data-collection mandate was beyond the commission’s authority, and was unnecessary and unconstitutional to boot.
Both associations said their members were “committed to diversity and inclusion” and argued the “vibrancy“ of the media marketplace demonstrated that commitment. But they said the Fuse petition did not advance either of those goals, but rather would burden distributors and their affiliates and “raise serious policy questions.”
As an example of that “vibrancy” they pointed to Comcast Xfinity, which they pointed out offered “TVOne, Cleo, AspireTV, Revolt, Afro, KweliTV, The Africa Channel, BET, BET Her, Impact, Up Faith & Family, Black News Channel, and OWN.”
As to the burden, that would include collecting diversity data “from all linear programming networks they carry, vendors for apps they make available, and vendors for VOD content,” they said, adding that it was unclear how much data would have to be collected from each.
For example, they asked, if an MVPD had the Prime Video app on its set-top, would it have to collect diversity data on the whole of Amazon? Then there are the five production companies involved in the Hulu offering, Only Murders In The Building. Would Hulu’s owner, The Walt Disney Co., have to collect diversity data on each one? Such a requirement would be unprecedented, they said.
Then there is the fact that the data collection burden, and presumably the responsibility for its accuracy, is on the distributor, not the content provider, who might not cooperate or whose data might not be accurate.
Back in November, FCC chair Jessica Rosenworcel pledged to Congress that the agency would take a fresh look at the video programming marketplace, particularly as it concerned independent programmers like Fuse. ■
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.