OTT Incumbents, New Entrants Disagree About MVPD Designation
Incumbent online video distributor AT&T and relative new entrant FilmOn X disagree whether the FCC should consider online video distributors (OVDs) as multichannel video programming distributors, but agree federal regulation could be bad for the emerging business, in comments filed Tuesday in docket 14-261. Applying the “anachronistic” rules that burden MVPDs to over-the-top (OTT) services could have negative consequences, AT&T said. “Given the rapid development of the unregulated online video marketplace, it is unclear why the Commission believes it necessary -- or even wise -- to extend its regulatory authority into this space,” said Discovery, taking a similar stance. FilmOn, the Electronic Frontier Foundation and Public Knowledge see the MVPD designation as an opportunity to boost the OTT industry, if “a light regulatory touch” is used, according to FilmOn.
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Though NAB, NCTA and others said in their comments (see 1503040044">1503040044) that shifting OTTs into the MVPD sphere won't give them the compulsory copyright license that would let them retransmit broadcast content, Public Knowledge and FilmOn said the definition change could propel a change in copyright policy. Incorporating OTT into the MVPD definition will “demonstrate that the public policy of the United States is to encourage new forms of video competition,” Public Knowledge said. Copyright laws aren't likely to “evolve” otherwise, the public interest group said.
The FCC should take care not to put incumbent facilities-based MVPDs on uneven footing with online ones, said Cox Communications and Charter. Though Charter said it supported NCTA's opposition to the definition change, the company said if the FCC goes ahead, it should treat OVDs affiliated with traditional MVPDs the same as it treats unaffiliated online services. The rules for linear OVDs “should not turn on whether they are affiliated with facilities based providers,” Charter said. Cox made similar comments, but also said the commission's reclassification of OVDs should extend to explicitly declaring that IP-based video services such as U-Verse should bear the obligations of MVPDs as well. The Electronic Frontier Foundation took an opposite stance, asking the FCC to allow only OTT services to opt in to the MVPD designation if they choose. MVPDs that offer content online “should be subject to MVPD rules irrespective of which transmission facility they use,” EFF said.
The FCC's plan to extend the definition of MVPD to online services is “legally unsustainable and will have far-reaching adverse consequences for the video programming industry,” Discovery said. Despite its opposition to the proceeding, even the FCC proposing a definition change “proves” that online service Sky Angel was not an MVPD entitled to bring a program access complaint, Discovery said. The unresolved Sky Angel complaint proceeding led to the FCC's previous, defunct proceeding on redefining MVPD, and Sky Angel's complaint never received a final resolution, though the company has since shuttered its video business. The FCC “should clarify that any change in the MVPD definition does not entitle any entity to bring a program access complaint based on actions that occurred before the effective date of the change,” Discovery said. An attorney for Sky Angel didn't comment.
A broader definition of MVPD could create a “regulatory gap” for public TV stations, APTS and PBS said in joint comments. Noncommercial educational (NCE) stations don't have retrans rights with MVPDs, and the carriage rights they do have specifically refer to cable and satellite operators, the joint filing said. “No Communications Act provision or Commission rule would permit, prohibit, require, or condition” carriage of NCE programming on the OVD MVPDs, the filing said.
Changing the definition is “unwise as a policy matter and incorrect as a matter of statutory interpretation,” said Tech Freedom, the Consumer Enterprise Institute and the International Center for Economics, in a joint filing. The FCC should use a definition of MVPD that requires such entities to “own or operate the facilities for delivering content to consumers,” the joint filing said.