FCC Seeks Input on What Constitutes MVPD and ‘Channel’
The FCC asked how it should interpret the terms “multichannel video programming distributor” and “channel” in the context of a program access dispute brought by Sky Angel against Discovery Communications. In a public notice released Friday (http://xrl.us/bmzw8r), the Media Bureau asked what would be the most appropriate interpretation of the terms and the larger policy implications. The notice puts up for comment two possible interpretations raised in the proceeding. In one, “channel” would be defined to include “the provision of a transmission path, thus treating MVPDs as only those entities that make available for purchase multiple streams of video programming, as well as the transmission path,” the notice said. In the other, “channel” would be defined as programming network, so that “any entity that makes multiple “video programming networks’ available for purchase is considered an ‘MVPD,'” whether or not it also provides the transmission path.
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Depending on the outcome of the proceeding, it could open up the definition of MVPD to include so-called over-the-top distributors, affording them the same program access and retransmission consent rights as traditional pay-TV distributors. It’s an area the commission has avoided in the past. Complaints along these same lines brought by Virtual Digital Cable in 2007 are still pending, though the programming the company sought is no longer vertically-integrated with a distributor and VDC has ceased operations.
The notice comes about a week before the commission is required to respond to a mandamus petition brought by Sky Angel at the U.S. Court of Appeals for the D.C. Circuit over the FCC’s inaction in the proceeding. The D.C. Circuit recently allowed Discovery to file a response as well, court documents show.
The notice asked if subjecting emerging online video distributors to the regulations that other MVPDs operate under would deter investment in the new platforms. It also asked whether it would burden existing pay-TV programming networks and TV stations “with the requirement to negotiate with a large number of entities pursuant to the program access and retransmission consent rules.”
It asked whether online distributors of rental and VOD programming should be excluded from the definition of “video programming network” which stems from the 1984 Cable Act. “We note that the Commission has previously explained that video-on-demand ‘images’ constitute ‘video programming,'” the notice said. “Under this interpretation does any entity that offers video programming for purchase only on an on-demand basis (to the exclusion of pre-scheduled real-time linear streams of programming) make available ‘video programming’ as defined in the Act?” It goes on to ask whether traditional MVPDs could possibly transition to offering exclusively VOD programming. “In the event this occurs, would such an interpretation mean that traditional MVPDs would no longer satisfy the definition of ‘MVPD?'” Comments are due April 30, replies May 30.