NCTA: FCC Can't Redefine OVDs As MVPDs

Says FCC Is Following Title II With Another Free-Market Disruptor
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The National Cable & Telecommunications Association says that in the wake of Title II reclassification, which NCTA argues was unnecessary, the FCC is following up with another free-market disruptor.

Cable operators continue to argue that the FCC does not have the authority to define some online video providers (OVDs) as MVPDs for the purposes of insuring them nondiscriminatory access to programming.

The FCC has tentatively concluded that linear OVDs--ones that deliver day-and-date programming similar to traditional cable and satellite systems--should be defined as MVPDs, though it has lots of questions of whether and how that should happen.

Providing reply comments in that docket, the National Cable & Telecommunications Association fired back.

"[H]aving recently adopted what was once understood to be the 'nuclear option' of Title II regulation of broadband Internet access service to address a hypothetical threat to the openness of the Internet," NCTA told the commission, "the Commission in this proceeding is proposing to apply an arsenal of regulations from the Cable Consumer Protection and Competition Act of 1992, purportedly to promote competition in the already competitive and well-functioning online video marketplace."

NCTA argues that there is statutory language that bars launching that arsenal, and even if there weren't, there is no reason to conclude that doing so would have the pro-competitive affects its advocates assert.

It also argues that OVD services that cable operators want to provide to ISP customers and that are not restricted to an operator's own customers (as are, say, TV Everywhere services), are not “cable services” and should have the same regulatory status--meaning not MVPDs--as non-cable OVDs. That includes not being subject to local franchising authorities for those cable-supplied OVD services.

NCTA says a number of opponents of its position are simply trying to gain a competitive advantage, which is the same thing the network TV station affiliate associations said about cable's position.

NCTA says that the FCC is not free to modify the 1992 Cable Act's statutory definition of MVPD to serve its "policy preferences."

"The parties who contend that extending the 1992 Act’s program access provisions to OVDs is somehow pro-competitive fail to understand the difference between protecting competitors and promoting competition," NCTA said. "Meanwhile, various broadcast stations are concerned only with the hypothetical matter of ensuring that if OVDs were ever able to offer broadcast programming pursuant to a statutory copyright license, broadcast stations would be entitled to retransmission consent – and pay no attention to the legal or real-world policy problems associated with extending MVPD status to OVDs."