Opposition is lining up against the attempts by some over-the-top (OTT) video providers to gain status as multichannel video program distributors (MVPDs) and the FCC’s consideration of the petition.
The American Cable Association (ACA) officially advised the FCC’s Media Bureau that the status quo should be maintained, which is to say that OTT companies should not be granted MVPD status.
Should OTT companies – officially referred to as online video distributors (OVDs) – gain MVPD status, that would confer on them a set of legal rights to negotiate for access to traditional cable networks and channels. Gaining access to that programming is likely to make them far more competitive with MVPDs, a group that now includes traditional cable network operators, telco TV providers and the two direct broadcast satellite TV companies.
The ACA argued that granting OVD companies MVPD status is not in accord with the intent, language and structure of the law and with longstanding congressional and agency precedent that carefully separated the burgeoning online world from traditional forms of media regulation applied to facilities-based operators.
“Giving OVDs the same regulatory status as cable operators under the law would be an unreasonable interpretation of the law,” ACA President and CEO Matthew Polka said. “Far-reaching and disruptive consequences would result from imposing MVPD status on OVDs, because regulatory requirements crafted with wholly different business models and network configurations would apply by their terms to OVDs.”
The ACA explained that the best interpretation of the term MVPD was provided by the Media Bureau itself – namely that an MVPD is an entity that makes available to subscribers a transmission path over which it provides multiple channels of video programming.
OVDs (e.g., Netflix, Hulu, YouTube) do not have those transmission paths; they do not operate access networks.
The ACA stood by its view that an OVD that offers “video programming” and nothing else is not an MVPD because it isn’t using its own transmission path and isn’t offering a physical “channel,” as that term is defined in the law and in FCC regulations.
The legal distinction would give companies like Hulu and Netflix rights to programming they have not earned, the ACA argues.