Sources: Wheeler Working on Independent Programming Access Rules

Stems from NOI sought by Clyburn
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It looks as though there could be new FCC rules on access to independent programming after all or at least a proposal to adopt them.

According to multiple sources, a Notice of Proposed Rulemaking is in the works from FCC chairman Tom Wheeler and commissioner Mignon Clyburn, stemming from the Notice of Inquiry (NOI) launched earlier this year at Clyburn's request.

An FCC spokesperson had no comment, but an industry source suggested it could be as early as a September public meeting vote. No word on what the new rules would look like, but there are a lot of issues on the table.

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In outlining the inquiry, which was launched last February, Media Bureau chief Bill Lake called it a fact-finding enterprise on program diversity and possible ways to address complaints that cable operators and other multichannel video programming distributors (MVPDs) might be stifling competition.

Among the things the FCC sought input on was most favored nation and alternative distribution method provisions in contracts, which independent networks have said can hinder their access. It also got comment on access to over-the-top distribution, program bundling, and issues affecting public, education and government (PEG) channels.

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Wheeler will need Clyburn's vote on a set-top box proposal that has gotten pushback from some Hill Democrats as potentially adversely impacting diverse programmers, so proposed rules on independent content access, including diverse programming, could smooth the way for garnering more support for unlocking the set-top box, including on the Hill.

Clyburn pushed the FCC to open the inquiry after the FCC approved mergers that raise issues about that access.

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Wheeler opened the inquiry last February.

That access is a big issue for the American Cable Association, which argues that program bundling practices and most-favored-nation clauses are an impediment to those independent voices. "We want to assure there is a diversity of voices in the marketplace," ACA president Matt Polka said in asking where Clyburn thought the inquiry was headed.

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Clyburn said at the Independent Show in Orlando last week that since the inquiry had been opened, more than 36,000 comments had been filed. She also said she was working with the chairman on "next steps" and would prefer that the FCC propose some new rules. Apparently, those are now in the works.

Whatever the outcome, she told Polka in a Q&A, the "fact-finding" exercise left the FCC in a better position to find solutions. Polka indicated it was a good "first step" and said he hoped it could move to a rulemaking at some point.

A rulemaking is only a proposal, however, and is no guarantee of a final order or new rules, as was the case with a retransmission consent reform NPRM under FCC chairman Julius Genachowski.

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