FCC Touts MVPD Definition Public Notice at D.C. Circuit
The FCC pointed to a recent Media Bureau public notice asking questions about the definition of the terms “multichannel video programming distributor” (MVPD) and “channel” as it presented its defense of its pace of adjudicating a program access complaint brought by Sky Angel against Discovery Communications. In a response to Sky Angel’s petition for a writ of mandamus at the U.S. Court of Appeals for the D.C. Circuit, the commission argued that the notice represents a concrete step toward resolving the dispute.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The answers to the questions raised in the notice (CD April 2 p9) “may have profound effects throughout the Internet-based video distribution industry,” the commission said in its response. “It is reasonable in this case for the Commission to take the time necessary to consider the full implications of its decision -- including seeking and considering public comment -- rather than making a potentially far-reaching ruling without a complete record.”
Discovery also called out the bureau’s public notice and the questions the notice raised in its response to Sky Angel’s petition, which was filed in March 2010. “Whether an OVD [online video distributor] such as Sky Angel can also be an MVPD, eligible for all the rights and responsibilities of that long-established regulatory category, is a question of first impression for the FCC and one with implications far beyond Sky Angel,” Discovery said. “The FCC is wise to allow sufficient time to undertake a measured and thorough review of all the implications of potentially declaring Sky Angel to be an MVPD, even if that should create a pace for resolution that is slower than Sky Angel would prefer."
Both Discovery and the FCC argued that not enough time has elapsed after Sky Angel filed its complaint to warrant a mandamus writ from the court. Despite the FCC’s self-imposed deadlines in resolving program-access complaints, the FCC said it can take its time when disputes present complex questions. “The commission has always recognized that a one-size-fits-all timeframe is unrealistic given the varying complexity of program access cases,” the FCC said. And when it adopted the five-month timetable for rejecting program-access complaints, it also warned that it might not always meet that target, it said. Furthermore, the D.C. Circuit has consistently denied mandamus petitions in cases alleging delays of similar duration, the FCC said.
Moreover, the FCC’s timelines for resolving such disputes, which are arbitrary, don’t even apply in this case, Discovery said. “Unless Sky Angel is determined by the FCC to be an MVPD, the program access issues raised in its complaint are not cognizable at all under program access rules,” it said. Finally, Sky Angel itself has drawn out the proceeding with untimely and supplemental filings containing new arguments and facts, Discovery said.
"Sky Angel cannot reasonably complain that resolution of its complaint has been unduly delayed when it has continually altered the record on which it expects the FCC to make a decision,” Discovery said. Should the commission deny the complaint, “Sky Angel would no doubt come to this Court arguing that the FCC had acted capriciously by failing to fully consider all of its arguments,” it said.