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Editorial: FCC: Make MVPD Call ASAP

Content may be king, but distribution is the key to whether that king remains on the throne or is deposed by a band of pirates.

Any day now, the studios with all that content, and the Internet service providers who are increasingly delivering that video content over the Web, will team up on an early warning system for those using peer-to-peer technology to illegally access TV shows and movies.

Peer-to-peer is a way to connect and coordinate a network of computers so that a large file—like an HD movie or TV show—can be downloaded more quickly. While that’s fine for legal content—well, except that it can be a network management headache for ISPs—peer-to-peer is the BitTorrent model that got Comcast into trouble with the FCC when it slowed both legal and illegal downloads in 2008.

This effort is targeting only illegal files, as determined by the studios, with an appeal process for those who think they got it wrong. Taking a page from the cellphone companies, Comcast, Time Warner Cable, Cablevision and the Motion Picture Association of America and others are combining to identify and alert those illegally downloading content, and providing them with a series of alerts and info on where to get stuff legally.

It is a way to give consumers fair warning before ISPs take action to redirect or slow illegal traffic.

The studios and ISPs are trying to find a consumer- friendly way to stop the 90% of illegal peer-to-peer traffic that the executive director of the alert project says is by people who don’t know they are doing anything illegal. The diehard pirates will still need to be dealt with, and the FCC has provided for network management flexibility to deal with pirates.

When Web content was just a glimmer in traditional distributors’ eyes, they made it clear that protecting that content was key to making it available online. Since then, the marketplace demand has increased and that movie and TV content is coming online from everywhere. But that doesn’t mean the piracy protection issue has been solved. The floodgates opened because they were forced open by a new generation of Web surfers and mobile content consumers. Now those consumers need to be taught that getting content without paying for it is neither a game nor an entitlement, and that there are consequences both for themselves and for the future of all that great content and distribution.

The executives inducted at this week’s B&C Hall of Fame ceremony in New York, and the classes that follow, will need answers from regulators and the legal system on how online content distribution is going to be treated. That is the kind of regulatory certainty business needs if it is to invest in and grow the digital distribution economy.

Ten years ago, answering this protection question would have been an academic exercise. Now, however, it is key information for businesses to have before committing to an over-the-top regime.

Among the flash points for decision-making remains the lawsuit over Barry Diller’s Aereo TV, which gets to the status of Internet distribution of TV station content, as well as the FCC’s open docket on what constitutes a multichannel video programming distributor (MVPD), which gets to the regulatory status of aggregators and distributors of all kinds of online video content.

The courts move at their own pace, which, measured in Internet innovation units (or IIUs, to coin a term), is glacially slow. For its part, the FCC controls its own calendar, but it is in a bit of a quandary. The commission raised the issue of defining MVPD in the context of an existing, years-long complaint filed by Sky Angel, an over-the-top provider that wants program access rules applied to IP-delivered service. But the definition issue is larger than that complaint; it implicates the entire content-distribution regime, and it deserves its own independent review.

While we cannot speed up the court process, we can and do urge the FCC to weigh in on the definition of an MVPD as soon as it can.

That means opening a fresh docket, putting a reasonable time limit on comments and then deciding whether/how program access or carriage rules, must-carry or other obligations will be applied to online video providers.