Click through for photos from the White House premiere of Lifetime's The Road to Bountiful, the party for the season-four return of IFC's Portlandia and more events for the week of March 10.
The Federal Communications Commission is going to need to make a decision, and soon, on how it will treat over-the-top services in the “brave new world” of broadband video delivery (and, yes, we understand the irony in that phrase).
The FCC has yet to make a call on over-the-top provider Sky Angel’s petition for access to Discovery content beyond the tentative, bureau-level conclusion that there is a transport element to traditional cable delivery of service that is missing in the online-delivery model.
Last week, a federal judge in New York’s Southern District concluded that online streaming service ivi TV, which delivers broadcast networks and other channels to subscribers, is not a cable service under copyright law. And even though she did not reach a conclusion on whether it was a cable service under the FCC’s definition, she spent some time pondering the question.
She pointed to the Copyright Office’s report way back in 1997 B.G. (Before Google) that “it was inappropriate to bestow the benefits of a compulsory license on an industry so vastly different from the other retransmission industries now eligible for compulsory licensing.” The Office said that the big difference between the Internet retransmitting programming and others was the ability to do so “instantaneously and worldwide.”
That just about describes all communications nowadays, so speed and ubiquity can no longer be used as a big differentiator unless authentication models become the standard online.
In a report to Congress in 2008 prompted by the 2004 reauthorization of the compulsory copyright license for distant TV-station signals, the office provided some new guidance. The report’s “principal finding” was that Internet-protocol delivery should be eligible for the compulsory license, “provided that these systems abide by the same broadcast- signal carriage statutory provisions and FCC exclusivity requirements applicable to cable operators.”
That would seem at first glance to have answered the question. Except for the fact that the office also concluded that IP was a substantially similar delivery mechanism to cable, while online video was a different animal that should not be eligible for the license.
Fast forward to today, when the FCC is touting online video sites as a competitor to traditional cable, which would be fine with the FCC and the administration since they are looking for anything handy to promote deployment and adoption of broadband.
If online video distributors (OVDs) are the FCC’s next flavor of choice in video distribution, there are a ton of questions, from ones about program access and carriage rules and retransmission consent to what constitutes regulating online content, that the FCC or Congress or the Copyright Office needs to start clearing up - and soon.