The ABC, NBC and CBS affiliate associations have told the FCC it should include online video providers (OVDs) in the definition of multichannel video programming distributor (MVPD). They are concerned that otherwise those services would not be subject to the must carry/retransmission consent rules and exclusivity protections.
That comes as TV stations across the country are fighting Barry Diller's new Aereo TV, which they see as an effort to use Internet delivery to sidestep retrans payments for retransmitting broadcast signals over the Internet.
The stations, in comments filed with the FCC Monday, went farther than the National Association of Broadcasters, which in its comments advised the FCC to think long and hard about redefining MVPD to include OVDs, but did not say the FCC should do so. It did say that if the FCC did include OVDs, it should apply the same retrans and exclusivity obligations to online video providers.
While cable and telco providers were urging caution, either by sticking with the Media Bureau's tentative conclusion that OVDs are not MVPDS, or by kicking that decision up to the Commission or ultimately to Congress, the affils said that while the decision to reclassify would have "profound and far-reaching implications," the call was not a hard one, and that the Media Bureau should go ahead and make it.
The term "multichannel video programming distributor" ('MVPD') is defined broadly in Section 602(13) of the Communications Act of 1934 as "a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming," it points out. "[T]hat definition is expressly flexible, open-ended, and untethered to then-current technology."
While others, particularly on the cable and telco side, argue that the plain definition of "channel" and "MVPD" excludes an over-the-top provider lacking facilities-based distribution, the TV stations see it quite differently.
"By its plain terms," they say, the statute "is amply broad enough to encompass entities that distribute multiple linear streams of video programming to subscribers by means of a broadband Internet connection rather than via cable, satellite, telco, or microwave."
Using arguments both broadcasters and cable operators have made for FCC regulatory reforms--that the digital age has outgrown regulatory silos and definitions from another century--the broadcasters argue that the fact that "programming providers utilizing the Internet for delivery are not listed among the enumerated examples of MVPDs is without significance, as the 1992 Cable Act, which added the statutory definition, preceded the widespread availability of broadband Internet access by many years."
The stations are looking to make sure that if over-the-top replaces traditional cable or becomes a competitor in retransmitting TV stations to the home, the same must carry/retrans regime and exclusivity protections apply. If not, they argue, it would have "dire consequences for television broadcasters and the important public interest they serve."
If online video providers were not subject to the same obligations as MVPDs, they say, the result would not only contradict Congress's clearly stated, express intention that "anyone engaged in retransmission consent by whatever means" obtain a station's retransmission consent, S. REP. 92-102, 1992 U.S.C.C.A.N. 1133, 1167 (1991) (emphasis added), but it would also directly and significantly undermine the important public purposes served by the retransmission consent regime and thereby pose a serious threat to over-the-air broadcasting."
