The American Cable Association says any FCC rulemaking proposal stemming from its inquiry into program diversity should seek comment on forced bundling and penetration requirements and most-favored-nation clauses.
The FCC is working on a Notice of Proposed Rulemaking, sources told B&C earlier this month.
ACA wants the FCC to determine how widespread program bundling is, whether it inhibits independent programming carriage or broadband deployment (given limited bandwidth), whether bundling should be restricted, and much more.
According to sources, new access to independent programming rules would be based on the Charter-Time Warner Cable merger access conditions.
The NPRM is expected to propose applying industrywide, per a new FCC rule, the Charter-TWC condition—contained in a Department of Justice consent decree—that prohibits New Charter from preventing programmers from doing deals with online video distributors (OVDs) like Netflix.
That would include codifying the associated DOJ conditions that distributors will not be able to employ most-favored-nation (MFN) clauses if "they are inconsistent with [that] prohibition" and that distributors are also prohibited from retaliating against programmers for licensing to OVDs.
