[opendtv] Sources: FCC Majority Approves Over-the-Top NPRM | Multichannel
- From: Craig Birkmaier <craig@xxxxxxxxxxxxx>
- To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
- Date: Wed, 10 Dec 2014 08:22:13 -0500
http://www.multichannel.com/news/technology/sources-fcc-majority-approves-over-top-nprm/386168
Sources: FCC Majority Approves Over-the-Top NPRM
According to sources, a majority of the FCC--all Democrats--have voted to
approve the Notice of Proposed Rulemaking that would define some over-the-top
(OTT) video providers as multichannel video programming distributors (MVPDs),
at a minimum to qualify for nondiscriminatory access to programming.
The three Dems—Chairman Tom Wheeler and Commissioners Jessica Rosenworcel and
Mignon Clyburn -- give the item the needed votes to pass, though the
Republicans are still being given time to provide edits. The item was
circulated for a vote and once it achieved that three-vote quorum is now in a
must-vote situation, meaning the Republicans are on the clock and must vote it
soon or it will be adopted without them, since it already has the votes to pass.
One of the Republican offices asked for and received an extension until Dec. 10
to vote, but that is not a hard deadline and there could be another extension
of the edits are still being vetted.
The item would define an OTT that delivers a linear stream of programming as an
MVPD. That means those OVDs would have access to content through the FCC's
program access rules, but also have to negotiate retransmission consent with
broadcasters. It would not apply to TV Everywhere, which is in essence an
authentication regime for an online mirror of traditional service, in which
access rules already appear. But it does ask questions about how it should
treat TV Everywhere.
The idea behind the NPRM is to give over-the top providers offering an online
service that mimics a linear cable offering the same FCC-enforced access to
vertically integrated programming.
An FCC source confirmed the item had been voted by the Dems, with the
Republicans still making edits that were being considered by the other offices
at press time.
It is possible that the item could be 5-0 if the edits are accepted.
In addition to starting the process of defining OTT's in terms of competition
to traditional video, the item responds to a complaint by OTT provider SkyAngel
about access to content.
Exactly which OTTs should be defined as MVPDS and what other obligations or
rights would apply beyond that access--PEG channels, exclusivity--are all teed
up in many questions for the commenters, and ultimately the FCC, to answer.
A source who has seen the item describes it as the beginning of a process of
answering some tough questions that will help determine the future of online
video.
FCC Chairman Tom Wheeler had signaled the FCC needed to look at the regulatory
treatment of online video providers as online becomes a stronger competitive
video distribution platform, and circulated an item to the other commissioners
in October. B&C/Multichannel News first reported on the item in September.
The NPRM would reverse 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 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.
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
facilities.
To define it otherwise, they say, would result in "expansive regulation of the
Internet" and conferring rights and 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."
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