FCC and NAB Grapple Over Rights Definitions

The National Association of Broadcasters and some of its biggest network members disagree over whether the FCC should step in to redefine linear overthe- top providers as multichannel video programming distributors, or let the marketplace work out the logistics of fitting new video entrants into the mix.

The issue is gaining currency as more programmers launch over-the-top services that mirror traditional bundles. The redefinition, which would at minimum extend program access rights to online video providers (OVDs), would not apply to on-demand services, only those that provide 24/7 channels of programming.

In filings with the FCC, the NAB said it backed the FCC’s redefinition as a way to modernize the rules to take into account Internet video distribution, and provide alternatives to cable and DBS systems.

But in a separate filing, three of the NAB’s network members—though arguably wearing their studio hats most prominently—told the FCC to back off, or at least to hold off.

Identifying themselves as video programmers, not broadcasters, CBS, Fox and Disney—Comcast/NBCU did not sign on—told the FCC that “there is no market failure to address, and imposition of additional regulation may limit, rather than increase, the opportunity for consumers to obtain video programming.”

“We didn’t file ourselves and didn’t say anything specific about anyone else filing,” said a spokesperson for Comcast when asked if the company associated itself with either the NAB arguments—NBC is a member—or the NCTA—with Comcast being its largest member. CBS, Fox and Disney, by language, were sounding more like they were in the cable than broadcast camp.

In its filing, the National Cable & Telecommunications Association said the FCC should let the marketplace work without intervention.

The NAB, by contrast, wants to make sure the FCC applies more than just programming access regulations to OVDs, including must-carry, syndicated exclusivity and other responsibilities that go along with MVPD status.

While the NAB says it agrees with the FCC that linear OVDs defined as MVPDs should be subject to retransmission consent/must-carry rules, it challenges the commission’s silence on how the network non-duplication and syndicated exclusivity rules would apply, which it says is “essential to the concept of localism.”

Broadcasters are also concerned about not extending geographic signal limits to online TV station signal distribution. “The Commission must ensure that its expansion of the definition of MVPD does not inadvertently erode the ability of broadcasters to serve their local communities,” the NAB said.

Given concerns over the safety and security of content on the Internet, according to the NAB, the FCC should find that it is not a per se violation of the responsibility to negotiate retrans in good faith that a station decline to negotiate—specifically, if an online video provider can’t or won’t demonstrate it has the technical ability to protect the TV station signal from piracy or forms of “misappropriation.”

Whatever the commission does, the NCTA wants a little more time to respond to the arguments by broadcasters and others. Last week, it asked for a 30-day extension of the March 18 deadline for those replies.


The National Association of Broadcasters has told the FCC that political advertisers should be subject to the same “last in, first out” (LIFO) test for preemption as commercial advertisers. That came in response to a petition challenging the practice from political ad buyer Canal Partners, which says the LIFO practice works against candidates because they buy more last-minute ads. But the NAB says evidence suggests otherwise.

“Information provided to NAB indicates that, as expected, the amount of lead time for advertisement purchases by both candidates and commercial advertisers varies and that both purchase time at the last minute and also well in advance,” the association said.

Political advertisers can also buy ad time that can’t be preempted to insure their spots will run as expected, but if they don’t, says the NAB, they should not get special treatment.

The NAB says that the Communications Act requires equivalent treatment of candidate and commercials; just as last-in commercial spots are subject to preemption, so should political ads.

The NAB adds that when the FCC codified its political broadcasting rules in the early 1990s, it “held that candidates purchasing a pre-emptible class of time are subject to the same preemption policies applicable to any commercial advertiser purchasing time.”

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.