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Univision Takes Aim at MFNs in FCC Filing - Broadcasting & Cable

Univision Takes Aim at MFNs in FCC Filing

Falco says contracts 'often' harm competition
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Univision is no fan of most-favored nation (MFN) clauses, which the FCC is eyeing in its inquiry into independent programmer access to distribution platforms.

That came in opening comments to the FCC on that inquiry, which were due this week.

"I am increasingly concerned about the growing use by large MVPDs of expansive most-favored nation clauses (MFNs) that cover a broad number of contractual terms," said Univision President Randy Falco of the programmer's FCC filing. "These MFNs often harm competition and diminish innovation, especially for independent and diverse programmers and creators."

Univision pointed out that many MVPDs don't carry their Fusion and El Rey networks, or Mexico news net Foro.

It says that belies claims by MPVDs that programmers bundle nets to extract unreasonable carriage terms, given that "Univision does not have the power to require MPVDs to carry its entire suite of network."

While Univision concedes that MFNs are common and can be appropriate in limited circumstances, it also points out that courts have found they can be used anticompetitively, and that in the case of MVPDs, "given the proliferation of MFNs in affiliation agreements, concessions made by a programmer to one MVPD also are likely to cause a “domino effect in the programmers’ contracts [with] other MVPDs."

And preaching to the choir, which means an FCC already concerned about access to over-the-top video, Univision said the contracts are used to "effectively prohibit a programmer from granting advantageous conditions to a new OTT entrant with a relatively small subscriber base, or effectively preventing a programmer from making its programming more widely available on an on-demand basis."

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