[opendtv] FCC Proposes Defining 'Linear' OVDs as MVPDs | Multichannel

  • From: Craig Birkmaier <craig@xxxxxxxxxxxxx>
  • To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
  • Date: Mon, 29 Sep 2014 17:08:20 -0400

What say you now BERT?

The FCC is about to classify the planned Sony, Verizon and AT&T over the top 
(streaming) services as MVPDs, allowing them access to the same bundled content 
as the cable, DBS, FIOS, and Google Fiber TV services.

I believe I predicted this several months ago...



FCC Proposes Defining 'Linear' OVDs as MVPDs

According to multiple sources, the FCC is working on an item that would define 
an online video provider (OVD) that delivers a linear stream of programming as 
an MVPD, similar to a cable or satellite operator. That means it would have 
access to content through the FCC's program access rules, but also have to 
negotiate retransmission-consent with broadcasters.

The idea is that over-the top providers would have an FCC-enforced access to 
vertically integrated programming.

The item reportedly asks what other MVPD rights and responsibilities beyond 
access and retrans carriage should extend to over-the-top providers.

An FCC spokesperson had no comment. But an FCC official speaking on background 
confirmed that the item proposed adopting a technology neutral definition of an 

That would mean reversing a tentative, bureau-level conclusion in the Sky Angel 
program access complaint that having a facilities-based transmission path was 
necessary to be an MVPD. The FCC tentatively concluded that an MVPD has to have 
control of both the content and the transmission path—copper, fiber, satellite 
signals to be delivering a channel—and that an OVD distributor lacks that path 
since it does not control a facilities-based channel to deliver it.

The NPRM tentatively concludes that the entity would not need to own the 
transmission path to be an MVPD as long as it provides a continuous linear 
stream of prescheduled programming--not like a Netflix or other on-demand video 
programmer without a linear lineup.

The FCC had been considering giving OVD's a path to MVPD status through a 
marketing or joint venture with ISPs', but there appears to be no opt in or opt 
out status, said the FCC official, adding that you either are or are not an 
MVPD keyed to delivering that linear lineup.

Sky Angel, which moved its linear service to over-the-top delivery, suspended 
operations in January 2014, something it pointed out to the FCC in comments in 
June was because it could not compete with traditional MVPD's, and that it 
could not compete because it did not have the access to programming afforded 
MVPD's via FCC program access rules.

If OTT's get MVPD status, they would get access to TV stations via must-carry 
and retrans rules, but would also be subject to program carriage requirements.

Such a decision could also insure that online video distributors have access to 
must-have video networks that would allow them to be competitive with 
traditional video suppliers like cable and satellite.

The FCC signaled in the Comcast/NBCU deal that it expected over-the-top video 
to become a competitor to traditional MVPDs going forward and, therefore, 
included conditions requiring the company to make its programming available to 
OTT providers on nondiscriminatory terms and conditions.

Giving OTTs MVPD status would also appear to mean would-be online TV station 
distributor Aereo could qualify for a compulsory license and have a path 
forward, but would also have to negotiate retransmission consent payments with 
TV stations if it wanted to carry stations that did not opt for must-carry.

But as with the network neutrality rules NPRM. the FCC will be collecting 
content and the item is far from set in stone.

Sky Angel, a provider of predominantly religious pay Internet-protocol 
television services, filed its program access complaint against Discovery 
Communications in 2010. Discovery decided to withdraw its programming from Sky 
Angel when Sky Angel converted the service to IP delivery from direct-broadcast 
satellite in 2008. However, as the FCC acknowledged in seeking input on the 
definition of an MVPD in 2012, "the interpretation of these terms has legal and 
policy implications that extend beyond the parties to this complaint."

The National Cable & Telecommunications Association has argued that a 
transmission path is necessary to be an MVPD.

It told the FCC in comments on Sky Angel that the 1992 Cable Act was clearly 
intended to promote "facilities-based MVPD competitors," which would require 

To define it otherwise, they say, would result in "expansive regulation of the 
Internet" and conferring rights an obligations on online entities the FCC does 
not track or license, may not have physical facilities in the U.S. and which 
"were never intended to be the subjects of such regulations."

Broadcasters have argued that if the FCC does give OTT's the rights to carry TV 
stations signals, they must also be subject to retransmission consent and 
program exclusivity rules.

Other related posts: