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NAB: OVPDs Should Be Subject to Retrans, Exclusivity Obligations

The National Association of Broadcasters told the FCC Monday
that broadcasters were generally supportive of broadband video services, but
that the FCC needs to make sure that if they are providing comparable
video-delivery services to traditional MVPDs, those Internet-delivered services
are subject to the same carriage and retrans obligations and local station
exclusivity and network nonduplication rules as traditional MVPDs.

Some NAB network members have a stake in Hulu, while local
stations are putting video content online as well, so broadcasters definitely
have skin in the MVPD definition game from the broadband side, but in this case
NAB is focusing on the fate of TV station signals, their protections and
compensation, under an over-the-top video delivery regime.

NAB said in comments filed Monday
that it could see the benefit of "new, competitive distribution platforms
capable of customizing programming or bundling different varieties of services,
including voice, Internet access and video services," as well as providing
a new platform for broadcast programming.

But that is only if the new services are not able to
"expropriate broadcast signals at will."

At issue is whether over-the-top video providers that ride
the transmission path of others are subject to the same program carriage rules
and obligations as traditional MVPDs. "Broadcasters must continue to have
the right to control the distribution of their signals over the Internet and to
obtain compensation from broadband video service providers seeking to
retransmit such signals," said NAB. That means retransmission consent.

"If new technologies can evade retransmission consent
and erode local viewership by overriding program exclusivity rights of local
stations and offering the same programs on stations imported from other
markets," said NAB in its comments to the FCC, "the viability of
local TV stations -- and their ability to serve their local communities with
high quality programming -- could well be lost."

Initial comments were due Monday, May 14, on how the FCC
should define multichannel video providers (MVPD) in an online world, and
whether OVPDs should be subject to the same carriage requirements if they
lacked the transmission path to the home -- like a satellite signal or wired or
wireless network.

The FCC call for help is related to its ongoing
consideration of a program-access complaint filed by Sky Angel, a provider of
predominantly religious pay Internet-protocol television services, against
Discovery Communications in 2010. Discovery decided to withdraw its programming
when Sky Angel converted the service to IP delivery from direct-broadcast
satellite in 2008. However, as the FCC acknowledged, "the interpretation of
these terms has legal and policy implications that extend beyond the parties to
this complaint."

In April 2010, when the FCC denied Sky Angel's request for a
standstill order to keep Discovery from taking its programming off the service,
the Media Bureau sent something of a mixed message. It said the FCC's rules
appeared to require a transmission path for a distributor to qualify as
delivering channels of programming, and that Sky Angel -- which delivers a
subscription package of linear and on-demand programming over the Internet -- had
not shown how it did that.

But the commission also said the issue was not settled, and
that the decision "should not be read to state or imply that the commission, or
the bureau acting on delegated authority, will ultimately conclude in resolving
the underlying complaint that Sky Angel does not meet the definition of an

The FCC has not resolved the complaint or the question, and
now wants some advice before it does given the wide-ranging implications of its