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NAB: Retrans, Exclusivity Must Apply To OVDs

The National Association of Broadcasters has doubled down on its assertion that the must carry-retransmission consent regime and program exclusivity rules must be applied to over-the-top video providers.

That came in reply comments to the FCC's inquiry into how it should interpret the terms MVPD and channel in the program access complaint by over-the-top provider Sky Angel.

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 who provide programming over their own transmission paths.

NAB filed comments May 14, and in Wednesday's reply comments used comments by Google in other proceeding to make its point again. While some commenters in the Sky Angel proceeding who opposed applying those obligations on OVDs (online video distributors) had characterized them as small start-up companies, NAB said, Google drew a different picture in comments in the FCC's status of video competition report, including data that showed there had been more than 5.1 billion online video viewing sessions in April 2011.

NAB argues that not applying retrans and exclusivity obligations will just encourage cable operators and other MVPDS to try and qualify for the carveout, and also pointed out that there are free trade agreements with 18 countries in which the U.S. has promised not to "permit the retransmission of television signals (whether terrestrial, cable or satellite) on the Internet without the authorization of the right holder or rights holders of the content of the signal,

and, if any, of the signal [emphasis NAB's]."  NAB's point was that TV stations, as the rightsholders of the signal, would have to aurhorize OVD retransmissions.

"There are no legal or policy justifications to exempt program distributors desiring to retransmit broadcast signals over the Internet from these requirements," said NAB. "Leaving broadcasters unable to control Internet distribution of their signals and without the means to negotiate for fair compensation for use of their signals would contradict Congress' mandate that "anyone engaged in retransmission consent by whatever means" obtain a station's consent, and would seriously undermine stations' ability to fulfill their public service obligations."

Broadcasters have made similar arguments in fighting Aereo TV in court. That is the Barry Diller backed service that bills itself as a remote vehicle for accessing and streaming a viewer's over-the-air signal remotely, and which broadcasters argue is a retransmission of their signal without due compensation.

The FCC call for help is related to its ongoing consideration of the 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 MVPD."

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 answer.