Wheeler: ‘Old’ FCC Rules Shouldn’t Impede Services Like Aereo

FCC chairman Tom Wheeler has signaled that the FCC's proposed redefinition of over-the-top video providers as MVPDs could indeed help Aereo, or a service like it.

In a speech to the Mid-Atlantic Venture Association Tuesday, Wheeler also kept the fire going under Title II, likening a hybrid approach to a two-pronged defense of an Open Internet.

"Two weeks ago I proposed to my colleagues that we require of cable operators and broadcasters the same thing that spurred the growth of the satellite video business in the mid-1990s – that competitors should be able to negotiate in good faith for video content, even if it is owned by cable companies and broadcasters," Wheeler said.

"By facilitating access to such content, we expect Internet-based linear programming services to develop as a competitor to cable and satellite," he said. "Consumers will be able to buy the channels they want instead of having to pay for channels they don’t want."

Then he invoked Aereo, which attempted to deliver TV station signals without paying for the content, until broadcasters sued and the Supreme Court sided with broadcasters.

"As you know, a startup called Aereo has already proposed doing this [being an over-the-top video competitor], but the broadcasters were able to stop it in court, in part because of the old rules of the FCC. Aereo wasn’t the reason for the new rules, but the idea that entrepreneurs should be able to assemble programs to offer consumers choices is something that shouldn’t be hindered by the FCC."

Wheeler also told the venture capitalists (Wheeler used to be one) that broadcasters will lose their court challenge of the incentive auction and the FCC will get its spectrum. He suggested broadcasters were impeding progress — the FCC has suggested the suit is partially to blame for delaying the auction.

Wheeler pointed out the FCC would launch its auction of 65 MHz of spectrum (the AWS-3 auction) in nine days, but he also talked about the broadcast incentive auction, now pushed back to early 2016. "Right now some broadcasters have gone to court to block the way in which we do this," Wheeler said. "It is an unfortunate reaction to an expansive and progressive undertaking. We will prevail in court and then move to auction the new spectrum."

The chairman also said that the proposal to move to a technology neutral definition of video delivery — the MVPD proposal would de-couple the definition of MVPD from control of the distribution facilities — involes the topic of Open Internet.

"While the new Multichannel Video Provider (MVPD) rule I have just proposed addresses rivals’ blocking access to content, there remains the ability of ISPs – who are generally video providers themselves – to block or degrade access to the IP connection," he said.

He reiterated his opposition to anticompetitve paid prioritization, which remains at least one step removed from saying he opposes paid prioritization, period. "The [Open Internet] rules we need must bar broadband networks from cutting special deals to prioritize some websites’ and applications’ traffic over others to harm consumers, harm competition, and limit innovation on the Internet," he said.

He also reiterated that Title II remains on the table, including a hybrid approach that he equated with an armed defense of important values:

"Our Notice of Proposed Rulemaking was expansive in the alternatives on which it sought input," he said. "Included in that input are a series of proposals from a diverse set of groups that an Open Internet rule should use both Title II and Section 706 of the Communications Act to stop paid prioritization from harming an Open Internet through a 'double-barreled' approach."

John Eggerton

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.