D.C. Goes Over the Top

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WASHINGTON — In placing conditions on Comcast’s merger with NBCUniversal, the FCC included conditions requiring the post-deal NBCU to make its programming available to over-the-top video providers on nondiscriminatory terms and conditions.

In many ways, it was an early indication that the agency expects over-the-top video to become a competitor to traditional multichannel video programming distributors.

But how, and whether, the Federal Communications Commission extends the rights and obligations of MVPDs to the increasingly wide world of online video providers will help shape the future of video distribution.

The Walt Disney Co. told the FCC recently that defining OVDs (online video distributors) as MVPDs has potentially “far-reaching ramifications for online distributors of video programming, broadband Internet service providers, on demand video program providers, cable affiliated programmers and television broadcasters.“

In settling a program-access dispute between Sky Angel, an Internet-based provider of Christian and familyfriendly subscription-TV programming, and programmer Discovery Communications, the FCC tentatively concluded that an MVPD required both a transmission path — fiber, copper and satellite — and the programming channels. Such a definition would exclude online programming aggregators such as Sky Angel, a onetime direct-broadcast satellite service that migrated to Internet delivery.

But before it set that definition in regulatory stone, the FCC asked for comment on whether or not that call was correct. Its answer could determine the future of over-the top video.

Don’t look for the FCC to weigh in on the Sky Angel case anytime soon, however. According to sources within and outside the FCC, the agency will almost certainly issue a separate rulemaking on the definition of MVPD. A decision on the Sky Angel complaint, which hinges on that definition, would come sometime after that.

Representatives of companies on both sides of the issue have counseled the FCC to open a new proceeding.

But while they may want a separate proceeding, many stakeholders have already tipped their hands.

The “write” definition: TV writers want a “technology neutral” definition of MVPD, which means they want online providers to be subject to the same access requirements that compel cable operators to carry program networks on “nondiscriminatory terms and conditions,” according to a Writers Guild of America, West filing with the FCC.

Narrowly defining MVPDs to require both the transmission path and video-programming channels would deprive consumers of competitive offerings from Sky Angel and other potential market entrants such as Intel, Sony and Apple, the WGAW argued. That means decreasing the number of outlets for TV programmers and, thus, writers. Without FCC action, the scribes said, content creators won’t reap the rewards of the new platform.

Disney: Looking out for the interests of its ABC ownedand- operated television stations, Disney told the FCC that no matter how an MVPD is defined, if over-the-top providers retransmit signals — and the definition of retransmission is at the heart of the debate over mobile TV provider Aereo — TV station signals “and the copyrighted content they deliver, they must get consent to do so.

Cable operators: The National Cable & Telecommunications Association, whose members serve the vast majority of cable subs nationwide, has said it definitely doesn’t want the FCC to give over-the-top providers the same rights and obligations as MVPDs, arguing it would lead to expansive regulation of the Internet.

“As anyone who has searched for videos on YouTube or Google knows, virtually anyone can — and does — distribute video programming online,” the NCTA said in its filing. Eliminate the transmission path from the definition, the NCTA said, and the FCC would be faced with the essentially impossible task of “applying MVPD status to a set of online entities that the commission neither tracks nor licenses, which may or may not even possess any physical facilities in the United States and which were never intended to be the subjects of such regulations.”

Broadcasters: The National Association of Broadcasters, as well as consumer groups and TV affiliate associations, saw some ulterior motive in cable operators’ stance. They argued that MSOs could reconfigure their systems — they have already established a strong online beachhead with so-called TV Everywhere services — to qualify for some rules, but fall outside of others. That is why the NAB has told the FCC it must apply retransmission- consent and program-exclusivity rules to overthe- top providers.

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