Washington — The Federal Communications Commission’s
request for help in defining what exactly an
MVPD is finally drew a crowd last week, and cable operators
agreed on a couple of things.
First, they agreed the FCC should stick with the Media
Bureau’s tentative decision that online video
distributors (OVDs) without distribution facilities
are not MVPDs (multichannel video-programming
distributors) with access rights and carriage/retrans
obligations.
Second, they said if the FCC is inclined to redefine
OVDs, the decision is too big, with too many ramifications,
to be done at the Media Bureau level as an addendum to
the Sky Angel complaint.
Under chairman Julius Genachowski, the FCC has made
it clear it expects over-the-top video to become a competitor
to traditional MVPD delivery. The commission included
online video-access conditions in the Comcast/NBCU
deal, and Media Bureau chief Bill Lake has talked of using
the union of traditional video and Internet delivery as
a way of driving broadband penetration, one of the FCC’s
mantras.
With that, cable operators are right to be concerned that
the FCC is looking to push online video over the top, as
it were, by giving program-access protections to companies
such as Netflix, Hulu Plus, Vudu and Vimeo, unless, of
course, “subjecting these entities to MVPD regulations deter
investment in new online programming ventures and
drive some current online distributors of video programming
from the market” — a question the Media Bureau
raises in the request for comment.
SEPARATE PROCEEDING?
In fact, the bureau raises so many questions, with so many
possible answers and permutations, that it suggests the issue
might warrant its own separate proceeding.
Still, the bureau suggested it would be making the call.
“We issue this Public Notice to ensure that before deciding
the proper interpretation of
the terms, we will have the
benefit of broad public input
and carefully consider
all legal and policy implications,”
the bureau said in
March.
The National Cable &
Telecommunications Association,
American Cable
Association, Time Warner
Cable, Comcast and Cablevision
Systems all argued
for excluding OVDs
from the MVPD definition,
and as a backup plan, telling
the FCC it must raise the
issue to a commission-level
decision, or perhaps a congressional
one.
“If Congress wants to deal
with OVDs,” ACA vice president
of government affairs
Ross Liberman said, “that is
probably the best treatment.
If the question is whether
OVDs are MVPDs under the
current statute, there are legal
limitations in terms of
what the commission can
do. When it comes to whether
or not OVDs should have the same rights as MVPDs,
that is a different question, and one best left for Congress.”
But affiliates of ABC, CBS and NBC said the FCC should
definitely include OVDs in the MVPD definition, and suggested
it is a relatively easy call that the Media Bureau
can make without any help.
Broadcasters diametrically opposed to cable operators
at the FCC? Retrans must be involved, and it is.
The affiliate associations told the FCC that if OVDs
are not included in the MVPD definition, they would
be exempted from retrans rules — which broadcasters
have begun capitalizing on through increased carriage
fees.
“Such a 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,” the stations
said, “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.”
The National Association
of Broadcasters did not go as
far, agreeing with cable operators
that the FCC should take
a long, hard look before changing
so key a definition, but it
said if the FCC chose to do so, it
must apply retrans obligations
on OVDs.
Broadcasters clearly have an
interest in going to the mat on
OVD carriage of their signals.
They are currently preparing
for oral argument at the end of
this month in their long-running
legal challenges to overthe-
top TV station streamers
FilmOn and Ivi TV, according to
one broadcast exec familiar with the cases. And they are
currently battling Barry Diller’s Aereo TV, which they
said is also an over-the-top effort to evade retransmission
payments.
SKY ANGEL ACTION
The FCC’s request stems from its ongoing consideration
of a program-access complaint filed by Sky Angel, a provider
of predominantly religious, Internet-protocoldelivered
pay television services, against NCTA member
Discovery Communications in 2010.
Discovery decided to withdraw its programming when
Sky Angel converted the service to IP delivery from direct-
broadcast satellite in 2008. However, as the FCC acknowledged,
“the interpretation of these terms has legal
and policy implications that extend beyond the parties to
this complaint.”
And those parties had plenty to say last week. Here is
just a sample:
NCTA: “Under the statutory definition, MVPDs
provide ‘multiple channels of video programming.’ The
language of the definition, its legislative history and purpose,
and the Commission’s past decisions all support the
Bureau’s interpretation that the term ‘channels’ includes
a transmission path.”
Time Warner Cable: “Now that the ‘bottleneck’ concerns
that animated adoption of the program-access rules
(among other requirements) have evaporated, there is no
continuing justification for maintaining such requirements
at all, much less for expanding them by authorizing
additional types of competitors to pursue complaints.”
American Cable Association: “Such a wide-sweeping decision
to reverse settled interpretations, if warranted by
the terms of the Act, is properly left to the Commission
in an industry-wide rulemaking. If after conducting such
an industry-wide rulemaking, inclusion of OVDs under
the ambit of the term ‘MVPD’ is unsupported by the language
of the Act and its legislative history, as appears to
be the case, then the matter properly becomes one for decision
by Congress.”
Comcast: “Congress did not and could not conceive of
OVD services — which rely on the
customer to acquire and use a transmission path that is
offered and operated separately and apart from the OVD
service — as MVPD services.”
HIGH (STAKES) DEFINITION
The following is the Cable Act and FCC rule language on MVPDs and channels.
The Media Bureau has signaled it plans to decide whether these definitions from two decades ago still fit the video distribution marketplace.
MVPD: “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.”
Channel: “[A] portion of the electromagnetic frequency spectrum
which is used in a cable system and which is capable of delivering
a television channel (as television channel is defined by
the Commission by regulation).”
Broadcast channel (as defined by the FCC): “[A] band of frequencies
6 MHz wide in the television broadcast band and
designated either by number or by the extreme lower and upper
frequencies.”
Cable channel: “[S]ignaling path provided by a cable television
system.”
SOURCE: FCC Media Bureau
