The FCC’s Media Bureau has opened a short public comment window to explore the legal and policy consequences of defining a “multi-channel video programming distributor” (MVPD) to encompass online and other video distributors who have operated without the obligations and rights assigned to cable, satellite, and telephone MVPDs. If the Commission were to revise its current stance, it could lead to significant changes in the media landscape.
The FCC’s “program access” rules allow MVPDs to raise claims over access to satellite delivered broadcast programming, satellite cable programming, and some terrestrially delivered cable programming. For years, the FCC has avoided deciding how far to stretch the definition of MVPD, and kicked this complex issue down the road. As video began to be carried on the Internet, the FCC stated that the quality of over-the-top was insufficient to equal a “television broadcast station,” which is how it read the definition of “video” in the 1984 Cable Act. When another company subsequently sought treatment as an Open Video System (OVS) provider by using over-the-top video transport instead of a new facilities-based network, the Commission again dodged the issue: it found that the applicant had failed to serve copies of the application on each local cable franchising authority. More recently, the issue arose in the context of “program access.” SkyAngel sought to invoke program access rights to cable networks on the theory that it is an over-the-top MVPD. In an interim ruling, the Bureau denied SkyAngel program access eligibility, because its over-the-top Internet mechanism does not include “channels” that “include a transmission path” the way facilities-based service providers like cable, satellite and telcos do. In the Comcast NBCU merger, the FCC did not resolve the underlying issue, but it constructed new paths for online video distributors to gain access to some programming affiliated with the merger partners, such as by developing comparable carriage relations by contract with a Comcast NBCU peer.
Courts have also engaged on how companies that deliver video service over the Internet fit within existing regulation. For example, ivi sought to use the compulsory cable copyright license to transmit broadcast signals over the Internet. It was enjoined because the court did not view it as the geographically localized “cable system” for which the compulsory license was written. (The recently announced Aereo venture, designed to carry broadcast signals to Internet homes, is clearly poised to test that ruling.)
Media Bureau Questions
The Media Bureau seeks to address some of these questions by analyzing technical and legal definitions and considering policy implications. It asks whether it would advance consumer choice to treat online and other non-facilities-based video distributors as MVPDs. It asks whether the benefits would be outweighed by the burdens placed on program suppliers faced with almost unlimited requests for access, or by unexpected obligations by online providers to comply with MVPD rules like separating security in their video devices (the “integration ban”), carrying certain content, and obtaining retransmission consent from broadcasters. It asks whether the set of non-facilities-based providers could be narrowed by requiring some contract or affiliation with an ISP, or by limiting it to those who carry pre-scheduled linear services. Then it worries whether it would lose its own authority as MVPDs move increasingly to on-demand or cloud-based distribution.
Some may surmise that the Bureau’s questions have been posed to provide the Commission with ammunition at an upcoming court hearing in which it may be asked to explain why it has not yet resolved related cases now pending before it. But regardless of initial intent, the Commission has opened up the prospects of new interpretations of laws that are straining under the weight of technological change.
Comments are due Apr. 30, 2012, with replies due May 30, 2012.