Chorus Calling for Wider MVPD Proceeding Grows
More companies told the FCC Media Bureau that a program-access dispute between Sky Angel and Discovery Communications is the wrong venue to resolve questions about whether online video distributors (OVDs) can be classified as multichannel video programming distributors and benefit from the same regulatory system. Intel urged the commission to initiate a rulemaking on the topic (http://xrl.us/bnbswz). “As much as the video marketplace has already evolved, we are on the cusp of even more profound changes as devices become more powerful, high capacity broadband Internet access becomes more ubiquitous and innovative ways to present and curate video content continue to develop,” the company said. “In such a dynamic and evolving environment, the issue of which video programming distributors are covered by the Communications Act warrants careful analysis."
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Other parties said the commission should only initiate such a proceeding if it wants to further explore the questions the bureau raised in its public notice. “Fox takes no position on the program access dispute between Sky Angel and Discovery,” Fox said. “Fox is certain, however, that the resolution of the much broader set of issues posed by the Notice would have sweeping implications for today’s video programming marketplace,” it said. “Fox submits that this adjudicatory process is an inappropriate forum for evaluating the definition of a statutory term,” the company said. “If there are valid reasons for considering updates to the FCC’s interpretation of the statutory term ‘MVPD,’ they warrant evaluation in a full-fledged rulemaking proceeding with all of its attendant Administrative Procedure Act requirements and protections."
Google drew a similar distinction (http://xrl.us/bnbsy3). It suggested the bureau should resolve the Sky Angel complaint narrowly, without addressing the questions raised in the public notice that prompted the comments. “It should defer any prospective and far-reaching policy discussions for an open proceeding of general applicability,” Google said: “Should the commission find the need to examine the question of how the terms ‘MVPD’ and ‘channel’ are to be interpreted prospectively, a permit-but-disclose proceeding” would a better way to handle it.
Some telcos said the full commission should handle such a proceeding, to the extent one is necessary. “CenturyLink agrees with those who have advocated that any Bureau decision on the Sky Angel complaint should be narrow, and that the Commission should conduct a rulemaking proceeding if it intends to address the definition of MVPD with respect to over-the-top video providers more generally,” the company said (http://xrl.us/bnbszh). AT&T had already taken that position in its initial comments, and again urged the agency to defer the issues raised in this proceeding to a future rulemaking (http://xrl.us/bnbszq). “As the Commission has found in the context of other parts of the Communications Act, the classification of IP-based services presents fundamental question regarding regulation and the continued development of the Internet and IP ecosystem,” AT&T said: Before it can resolve the questions in this dispute, “the Commission at a minimum, must review its analysis in other similar contexts to ensure that it applies a consistent and defensible logic, not only within the context of Title VI but across all parts of the Communications Act."
Others suggested the bureau could make the decision on its own. CBS argued that the bureau should recognize that OVDs are MVPDs under the Communications Act (http://xrl.us/bnbsz8). It wasn’t alone. The Writers Guild of America West also urged the bureau to adopt a broad definition of the term MVPD (http://xrl.us/bnbs2i). Broadcast affiliate associations again urged the commission to protect stations’ retransmission consent rights as they relate to new and traditional distributors. Cable programmers including Time Warner and Discovery urged the bureau to maintain its existing interpretations of the terms MVPD and “channel."
Sky Angel is “wholly deserving of a finding that it qualifies as an MVPD,” the company (http://xrl.us/bnbs2r) said: “If however the Commission cannot resolve the law and equities promptly, then at a minimum it should grant immediately Sky Angel’s Renewed Petition for Temporary Standstill” which would grant it access to Discovery programs while the commission decides the issues.