Film and TV Distributors Say FCC Net Neutrality Rules Won’t Work

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Jean Prewitt

The Independent Film & Television Alliance, the group behind the American Film Market, don’t want any priority arrangements allowed on the Internet because they say they can't be policed.

The Independent Film & Television Alliance, a group composed of international film/TV distributors that put on the annual American Film Market, believes the proposed FCC rules on net neutrality won’t stop discriminatory practices on the Internet.

In a filing to the FCC made public Wednesday, IFTA writes that the proposed FCC procedures — even with a complaint process or an advance review — “cannot provide effective protections.”

IFTA suggests that the information the FCC would need to assess commercial arrangements between broadband providers and those who want to ensure speedy delivery of their content and messages “is uniquely in the hands of the broadband providers themselves.”

“Those most likely to be harmed — entrepreneurs new to the marketplace, small ventures and consumers — are the least likely to be able to pursue a remedy through these regulatory processes,” says IFTA. “If these arrangements are allowed, the full and rapid development of a vibrant online marketplace will be restricted to the public’s detriment.”

Along with running the AFM each fall, IFTA takes positions and lobbies on behalf of its members, who are all companies that distribute movies and TV shows outside the U.S. – and outside the major studio system for the most part. (The filing was by IFTA president and CEO Jean Prewitt, general counsel Susan Cleary and associate counsel Archie Iskaq.)

The FCC-proposed rules would require those who see a problem to bring it to the attention of the FCC, which then could rule after the fact on whether or not it meets the criteria for an open Internet. IFTA is saying that is not workable.

IFTA cites video on demand as an important way independents reach consumers, but says broadband providers limit the content that is offered.

“Not withstanding claims to the contrary,” reads the filing, “the major VOD systems (including Comcast XFINITY, et al.) do not dedicate unlimited capacity to VOD offerings. They offer consumers only a small number of titles at any given time and retain titles on its servers for only a few months. Moreover, the program ‘slots’ that do exist are allocated routinely to films and programs that have had significant  prior exposure in the cinemas or on prominent television channels — traditional platforms that independents already find difficult to access.”

IFTA points out most of the broadband providers, led by Comcast and Time Warner, also own or have arrangements with other large entertainment industry players that limit independents from accessing their systems.

Now, notes IFTA, the new rules could choke off even the services around the edges that do show independent content: “These services are themselves limited in capacity and vulnerable to any disadvantageous terms dictated by broadband providers. As the market currently stands, conglomerates possess disproportionate market leverage and quasi-monopolistic power to control the means and conditions under which independent content gets to the consumer.”

The FCC rules, says IFTA, must “prevent and prohibit broadband providers from reflexively engaging in inherently discriminatory and commercially unreasonable practices.”

Any new rules, the filing insists, must encourage transparency, a no-blocking policy and non-discrimination. "Priority" arrangements should be prohibited outright.” IFTA adds that independents and consumers need strong protections against giant conglomerates that own much of the system distributing content electronically.

“These conglomerates,” says IFTA, “have strong incentive to act as ‘gatekeepers’ and to discriminate against other content either overtly through priority arrangements if allowed, or covertly under the guise of ‘network management’ by according preferential carriage to their own video program services.”

If the FCC does pass rules that allow broadband providers to offer priority services, the IFTA says, “it is virtually inevitable that consumers will lose access to that diverse programming and its much broader range of ideas, contrary to the public interest standard that guides the Commission. Thus, we urge the Commission to prohibit outright any such priority arrangements in any form by broadband providers.”

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