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Cybertelecom Federal Internet Law & Policy An Educational Project |
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Media :: Video Proceedings | |
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State of Video Programming Diversity
Independent video programmers repeatedly have expressed concern that some practices of cable operators and other multichannel video programming distributors (MVPDs) limit their ability to reach viewers. To evaluate these concerns and assess the impact of these practices on the Commission’s goal of fostering a diverse, robust, and competitive programming marketplace, the NOI asks for comment on the general state of the marketplace for independent video programming and the challenges faced by all independent programmers – including new and emerging programmers – in attempting to launch or grow.
The NOI specifically invites comment on several issues that independent programmers and other interested parties have raised in other proceedings, including
Lastly, the NOI asks about the Commission’s legal authority in this area and what role, if any, it should play in addressing obstacles that hinder consumers from accessing sources of independent and diverse programming.
Open Internet
Classification of MVPD
- Federal Communications Commission, Notice of Proposed Rulemaking, In the Matter of Promoting Innovation and Competition in the Provision of Multichannel Video Programming Distribution Services, MB Docket No. 14-261 (Adopted Dec. 17, 2014).
- "The issue of whether a certain type of OVD also qualifies as an MVPD under the Act and our regulations has been raised in pending program access complaint proceedings. See, e.g., VDC Corp. v. Turner Network Sales, Inc., et al., Program Access Complaint (Jan. 18, 2007); and Sky Angel U.S., LLC v. Discovery Communications LLC, et al., Program Access Complaint, MB Docket No. 12-80, CSR-8605-P (Mar. 24, 2010). Nothing in this Report should be read to state or imply our determination on that issue. The Media Bureau though is currently seeking comment on the interpretation of the terms "MVPD" and "channel." See Media Bureau Seeks Comment On Interpretation of the Terms "Multichannel Video Programming Distributor" and "Channel" as Raised in Pending Program Access Complaint Proceeding, MB Docket No. 12-83, Public Notice, 27 FCC Rcd 3079 (MB 2012). " - 15th Report, Para 4
- Gautham Nagesh, FCC Proposes Rules for Online Video Service Providers, WALL ST. J. (Dec. 19, 2014)
- Media Bureau Seeks Comment on Interpretation of the Terms "Multichannel Video Programming Distributor" and "Channel" as Raised in Pending Program Access Complaint Proceeding, MB Docket 12-83, Public Notice, 27 FCC Rcd 3079 (MB 2012). In 2012, the Media Bureau issued a public notice seeking comment on the most appropriate interpretation of the terms "multichannel video programming distributor" and "channel" as defined in the Act in response to a program access complaint filed by Sky Angel, a provider of video programming
ICrave
- House Commerce Committee Wednesday, February 16, 2000 10:00 am in 2123 Rayburn House Office Building. Subcommittee on Telecommunications, Trade and Consumer Protection hearing titled "Video on the Internet: iCraveTV.com and Other Recent Developments in Webcasting."
- Foes Permanently Scramble iCraveTV Plans Newsbytes 2/29
- Canadian TV Web site settles case with media heavyweights NandoTimes 2/29
Law
- Canadian Radio-television and Telecommunications Commission, Public Notice 2003-2, Internet Retransmission (Jan. 17, 2003)
- Intellectual Property Policy Directorate (Industry Canada) & Copyright Policy Branch (Canadian Heritage), Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet 2, (June 22, 2001)
- Canadian Radio-television and Telecommunications Commission, Public Notice 1999-197, Exemption Order for New Media Broadcasting Undertakings, 9 (Dec. 17, 1999)
- Canadian Radio-television and Telecommunications Commission, Telecom Public Notice CRTC 99-14, Broadcasting Public Notice 1999-84, New Media (May 17, 1999) (discussing application of broadcasting rules to new media aka the Internet).
Congress
- House Commerce Committee Wednesday, February 16, 2000 10:00 am in 2123 Rayburn House Office Building. Subcommittee on Telecommunications, Trade and Consumer Protection hearing titled "Video on the Internet: iCraveTV.com and Other Recent Developments in Webcasting."
Caselaw
- Twentieth Century Fox Film Corp. v. ICraveTV, 2000 U.S. Dist. LEXIS 1013 (Jan. 28, 2000).
- Twentieth Century Fox Film Corp. v. ICraveTV, 2000 U.S. Dist. LEXIS 11670 (Feb. 8, 2000).
Papers
- Sunny Handa, Retransmission of Television Broadcasts on the Internet, 8 Sw. J. of L. and Trade Am. 39, 53 (2001).
- Danistan Saverimuthu, The Regulation of New Media Broadcasting in Canada Post-iCraveTV.com, 19 J. Marshall J. Computer and Information L. 331, 334 (2001).
- Michael A. Geist., ICraveTV and the New Rules of Internet Broadcasting, 23 U. Ark. Little Rock L. Rev. 223, 236 (2000)
Retransmission Consent
- "The Communications Act requires that a television station give its consent to a cable system or other multichannel video programming distributor (MVPD) to carry its broadcast signal. Television stations and cable systems, as well as satellite carriers, negotiate for this “retransmission consent” and money or other consideration is generally exchanged between the parties in these private negotiations. If the parties do not produce an agreement in time, they may decide to extend the existing agreement, which means they would continue to carry the stations during their negotiations. If they do not reach an agreement, then the cable system or other MVPD must stop offering the stations to their subscribers.
"On March 3, 2011, the Commission adopted a Notice of Proposed Rulemaking (NPRM) in Docket 10-71 on proposed changes to the retransmission consent rules that would minimize disruptions to consumers if an agreement between the parties was not reached. Specifically, the NPRM asks for comment on proposals that would:
- Provide more guidance to the negotiating parties on good-faith negotiation requirements;
- Improve notice to consumers in advance of possible service disruptions caused by impasses in retransmission consent negotiations; and
- Eliminate the Commission’s network non-duplication and syndicated exclusivity rules, which provide a means for parties to enforce certain exclusive contractual rights to network or syndicated programming through the Commission rather than through the courts.
"The Commission is additionally asking for comments on any other revisions or additions to its rules that would improve the retransmission consent negotiation process and help protect consumers from programming disruptions. You can submit your comments on Docket 10-71 via ECFS."
Reports: Annual Assesment of Status of Competition
- ANNUAL ASSESSMENT OF THE STATUS OF COMPETITION IN THE MARKET FOR THE DELIVERY OF VIDEO PROGRAMMING. Media Bureau Releases 17th Annual Report on the Status of Competition in the Market for the Delivery of Video Programming. Action by: Chief, Media Bureau. Adopted: 05/06/2016 by REPORT. (DA No. 16-510). MB https://apps.fcc.gov/edocs_public/attachmatch/DA-16-510A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/DA-16-510A1.pdf- Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket 12-203, Sixteenth Report NOI (Released Jan 31, 2014)
- Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket 12-203, Fifteenth Report (Released July 22, 2013)
- Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Fourteenth Report, 27 FCC Rcd 8610, 8731, ¶ 271, 8733, ¶ 274 (2012) (“Fourteenth Annual Video Competition Report”) (“OVDs rely on high-capacity and high-speed broadband Internet services that are often owned and controlled by unaffiliated MVPDs. . . . MVPDs have the ability and incentive to degrade the broadband service available to unaffiliated OVDs.”);
Set Top Box
47 U.S.C. S: 549 The Commission shall, in consultation with appropriate industry standard-setting organizations, adopt regulations to assure the commercial availability, to consumers of multichannel video programming and other services offered over multichannel video programming systems, of converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems, from manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor
FCC MOVES TO "UNLOCK THE BOX" TO SPUR COMPETITION, CHOICE, & INNOVATION IN SET-TOP BOX AND APP MARKETPLACE. Proposal will protect copyright agreements, channel-lineups while giving consumers options. News Release. (Dkt No 16-42 ). Adopted: 02/18/2016. MB https://apps.fcc.gov/edocs_public/attachmatch/DOC-337795A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/DOC-337795A1.pdfEXPANDING CONSUMERS' VIDEO NAVIGATION CHOICES; COMMERCIAL AVAILABILITY OF NAVIGATION DEVICES. Notice of Proposed Rulemaking seeking comment on rules to implement Section 629. (Dkt No. 97-80 16-42 ). Action by: the Commission. Adopted: 02/18/2016 by NPRM. (FCC No. 16-18). MB https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-18A1.docx
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- Executive Order -- Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy April 15, 2016 ("Sec. 2. Agency Responsibilities. (a) Executive departments and agencies with authorities that could be used to enhance competition (agencies) shall, where consistent with other laws, use those authorities to promote competition, arm consumers and workers with the information they need to make informed choices, and eliminate regulations that restrict competition without corresponding benefits to the American public.")
- Administration Supports Efforts to Boost Competition in the Set-Top-Box Market April 15, 2016 by NTIA ("NTIA on behalf of the Obama Administration filed comments with the FCC applauding its efforts to provide consumers with more choice in how they access multichannel video programming and to help promote innovation in this market. The proposal would allow for third-party devices and other innovative solutions to compete with the set-top-boxes that the vast majority of consumers lease from MVPDs today.")
- FTC Consumer Protection Director Submits Comment on Privacy Enforcement Implications of FCC’s Proposed Set-Top Box Rulemaking April 22, 2016 ("In her comment, Rich recommends that if the FCC proceeds with the rulemaking, it should modify the proposed rule to facilitate FTC enforcement actions against third-party set-top box manufacturers that fail to comply with certain consumer privacy protections. ")
- Comments
- The FCC's Misguided Quest, AT&T Policy Blog, April 25, 2016 (In comments filed on Friday in the FCC’s set-top box proceeding, we observe that, like an old general fighting the last war, this Commission seems to be making its stand for a technology that is rapidly being supplanted. As Tim Cook has said, and as almost everyone knows, the future of TV is apps. But the FCC is proposing to re-engineer MVPD networks and video business models in a misguided quest to keep the world safe for set-top boxes."")
- The FCC's Set Top Box Mandate is not only unnecessary but Legally Unsustainable, NCTA (April 21, 2016) ("the FCC has proposed a new tech mandate that would force pay-TV providers to hand over their programming to third parties for use in set-top boxes or apps without regard for the licensing terms between those providers and their content suppliers, such as where programming will appear in a channel line-up, or any of the regulatory requirements applicable to pay-TV providers’ provision of such programming.")
- See also CPE; Open Internet Devices
- OTT Examples: Smart phones, Smart TVs, game consoles (X Box, Nitendo), Smart Boxes (roku), laptop, Cable set top boxes
- Sixteenth Annual Report, 30 FCC Rcd at 3353-59, ¶¶ 217-228;
- Matt Burnes, Google Launches the $35 Chromecast Streaming Device to Bring Chrome to the Living Room, TECHCRUNCH, July 24, 2013,
- Molly Wood, Where the Amazon Fire TV Fits Into the Living Room, N.Y. TIMES, April 2, 2014).
- 2.5 Million U.S. and Canadian Households ready to buy an Internet-connected TV, PARK ASSOC 3/31/2009
- Apple's iTunes Player Climbs Streaming Media Charts, Website Optimization Jan. 2006
Mergers
- Altice / Cablevision / Suddenlink 2015
- Charter / TWC 2015
- AT&T / DirectTV Merger 2014-15
- Comcast / TWC Merger 2014-15
- Comcast / NBCU Merger proceeding
- Competitive Impact Statement, United Stales v. Comcast Corp., General Electric Co., and NBC Universal, Inc., Case No. 1:1 l-cv-00106, at 37 (D.D.C. Jan. 18, 2011). ("Comcast-NBCU will have the incentive and ability to discriminate against, thwart the development of, or otherwise take anticompetitive actions against OVDs.");
- Comcast-NBCU Order, 26 FCC Red. at 4268 para. 78. ("Comcast-NBCU will have the incentive and ability to discriminate against, thwart the development of, or otherwise take anticompetitive actions against OVDs.")
Interactive TV
In the Matter of Nondiscrimination in the Distribution of Interactive Television Services Over Cable, CS Docket No. 01-7, ORDER (PROCEEDING TERMINATED) Adopted: September 17, 2008 Released: September 23 , 2008
In 2001, the Commission issued a Notice of Inquiry ( "ITV NOI ") seeking information on issues relating to "interactive television" or ITV services ("ITV"). The main questions raised in the ITV NOI included: (1) which entities are providing ITV services; (2) how will ITV services be delivered; (3) what business models will govern the delivery of ITV services to consumers; and (4) what is the general status of the ITV services market. The ITV NOI sought comment on the legal classification of ITV services, what public policy and statutory objectives any potential ITV rules might address, and the Commission's authority to act in this area. Although the proceeding was commenced as a result of issues raised in the America Online ("AOL") and Time Warner merger proceeding, the ITV NOI also sought information on the availability of ITV services by other competing video distribution systems.
Based on the record in this proceeding and on market developments that have taken place following the issuance of the ITV NOI , we now conclude that it is appropriate to terminate this docket. The triggering event for this proceeding was the merger of AOL and Time Warner and the recently launched AOLTV service, which was designed to provide interactive content in conjunction with video programming through a proprietary set-top box. In the intervening period, however, the AOLTV service has been discontinued, due to what has been described as a "dismal consumer response," as have certain other existing or proposed services of this type from other entities. A considerable variety of other types of interactive service offerings continue to be pursued both in the United States and in other countries, but without any uniformity as to technical standards or business models. Under the circumstances, and in light of the absence of any clear direction or consensus as to how this market may develop, it would be inappropriate to commence further regulatory action at this time.
We will, however, continue to monitor the development of ITV services and, in the event that future market conditions warrant intervention, we will respond accordingly. Parties may raise with the Commission any problems associated with specific implementations of interactive television services. Moreover, this action is without prejudice to our resolution of matters that may relate to ITV services in other pending proceedings, including those in CS Docket 98-120 (mandatory cable carriage of the signals of digital broadcast station signals), CS Docket 97-80 (commercial availability of navigation devices and the compatibility between cable systems and consumer electronics equipment), CS Docket 02-50 and GEN Docket 00-185 (broadband access to the Internet over cable and other facilities), and WC Docket 04-36 (IP-enabled services).
Accordingly, IT IS ORDERED that CS Docket No. 01-7 IS TERMINATED .
- NONDISCRIMINATION IN THE DISTRIBUTION OF INTERACTIVE TELEVISION SERVICES OVER CABLE. Terminated the Notice of Inquiry in this
proceeding. (Dkt No. 01-7). Action by: the Commission. Adopted: 09/17/2008 by ORDER. (FCC No. 08-212). MB
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Released January 18, 2001
CS Docket No. 01-7COMMENTS: March 19, 2001
REPLY COMMENTS: April 20, 20010
In re Nondiscrimination in the Distribution of Interactive Television Services Over Cable
1. Interactive Television ("ITV") is a rapidly-developing service that could provide tremendous value to American consumers. ITV services, provided over a high speed platform, will offer, inter alia, increased viewer control of the television viewing experience; integration of video and data services, including web content; real-time interaction with other viewers; and television commerce ("t-commerce"). If it turns out that only one delivery platform in each geographic area has the capability to provide the most attractive ITV services package, and if the platform provider is vertically integrated with an ITV service provider, then there would be the potential for anticompetitive behavior. This Notice of Inquiry ("Notice") seeks comment on what services constitute ITV services, what entities constitute ITV providers, how ITV services will be delivered, what business models will govern the delivery of ITV services to consumers, and the general status of an ITV services market.
2. In the 1992 Cable Act, Congress determined that cable television was the dominant platform among multichannel video programming distributors ("MVPDs"), and that cable market power in local distribution necessitated regulatory intervention in certain situations, including in the case of vertically integrated cable programmers. In particular, Congress directed the Commission to adopt rules limiting the share of cable capacity that could be used for commonly-owned content and requiring vertically integrated cable programmers to provide their content to rival distribution platforms on nondiscriminatory terms. If the same factual predicates that Congress cited in the 1992 Cable Act were to apply to a distribution platform delivering ITV services, then some regulation of those distribution facilities might be warranted.
3. This Notice addresses the question of whether, at least in the near term, the modern cable television plant is likely to be the superior platform for distribution of high speed ITV services. Commenters asserting that the cable platform will, in fact, have substantial advantages in distributing ITV services should also comment on whether certain cable operators should prohibited from discriminating among ITV service providers. The 1992 Cable Act analytic framework would suggest that such regulations be applied, if at all, to vertically-integrated cable ITV providers, i.e., cable television operators that have an attributable interest in an ITV service provider. Commenters arguing in favor of regulatory actions in this area should also provide recommendations on how to make the principle of nondiscrimination operational and whether the principle should be applied to cable television operators unaffiliated with an ITV provider. Commenters advocating imposition of regulations only on vertically integrated cable ITV providers should also address whether the current cable television ownership attribution rules would be appropriate for determining if a cable operator would be subject to nondiscrimination rules.
4. The Notice also seeks comment on whether any other distribution platform does or might possess market power in the distribution of ITV services and, if so, what regulatory approach, if any, might be warranted. The Notice seeks comment on the likely ITV delivery capabilities of other delivery platforms, such as Direct Broadcast Satellite ("DBS") and Digital Subscriber Line ("DSL"), in addition to cable. The Notice explores the idea that those distributors, if any, that we determine to have the power to act anticompetitively with respect to ITV service delivery should be subject to regulations that require nondiscriminatory treatment of unaffiliated ITV providers.
5. The Notice seeks comment on the legal classifications of ITV services, what public policy and statutory objectives ITV rules would promote, and the Commission's authority to protect this market. The Notice also asks questions about enforcement of any new rules, proposing alternatively a voluntary arbitration, subject to judicial review, or a Commission complaint procedure.Copies of Comments can be viewed on the FCC's Electronic Comment Filing System (remember the docket number)
FCC INITIATES PROCEEDING ON INTERACTIVE TV. News media contact David Fiske 0513; Office of Plans and Policy Jonathan Levy 2030; Cable Services Bureau Royce Dickens, Darryl Cooper 7200. Docket 01-07. News Release. Adopted: 01/12/2001. (FCC No. 01-15) OMR PDF | Word | Text | Press Release
NONDISCRIMINATION IN DISTRIBUTUION O INTERACTIVE TELEVISION SERVICES OVER CABLE ERRATUM TO FCC 01-15. Released an Erratum correcting the table of contents in the Notice of Inquiry (FCC 01-15), released January 18, in proceeding CS Docket No. 01-7. By Erratum. Adopted: 01/19/2001 by ERRATUM. CSB
Papers
Hernan Galperin and François Bar, The Regualtion of Interactive Television in the United States and the European Union, FCLJ 3/17/03 Cyberatlas Interactive TV Market Remains Complex Oct 2000 Who Wants Their ITV The Standard (statistics) More people turn to the web to watch TV, Free Press 8/2/2005 America Online confirms end of AOLTV, CNET 2/19/03 Whatever Happened to Interactive TV?, Newsfactor 6/24/02 ITAA Joins Other Trade Groups in Questioning Interactive Television Court Order -, ITAA 5/22/02 Final curtain comes down on ITV Digital, FTC 5/1/02 Putting HTML On ITV, Internet News 4/17/02 Interactive TV Arrives, Sort of, NYT 4/5/02 Analyst: Investors Don't 'Get' iTV, Allnetdevices 4/5/02 ITV giants offload Ask Jeeves stake, Guardian 2/8/02 ITV cashes in on Pop Idol fever, Guardian 2/4/02 Interactive TV football shown the red card, Guardian 2/4/02 In the U.S., Interactive TV Still Awaits an Audience, NYTimes 1/2/02 WebTV founder not giving up on interactive TV, USAToday 1/2/02 Study: Interactive TV Won't Find Success on the Web, Newsfactor 12/20/01 No Easy Way to Canadian ITV Services, Net Magazine Nov 2001 Study: ITV Battles Apathy, Allnet 9/5/01 Study: iTV Battles Almost Complete Lack of Interest, INews 9/5/01 U.S. Consumers Still Not Sold On ITV, Cyberatlas 09/01/01 Report on Interactive Television Technologies Documents New Threats to Privacy, CME 6/28/01 Interactive TV: It's watching you, CNET 6/28/01 Privacy Advocates: Interactive TV A Threat, Digital MAss 6/28/01 Interactive TV Worries Privacy Group, The Standard 6/28/01 Tattling interactive TVs a privacy threat, group saysq, USAToday 6/28/01 AT&T revamps interactive TV plans, CNET 6/8/01 AT&T Pares ITV Plans To MS's Chagrin, Internetnews 6/8/01 CBS Beats Portal Envy, Hypes Interactive TV, CNET 3/2/01 Who Wants Their ITV The Standard (statistics) Interactive TV: When Will It Arrive?, ZDNet 01/31/01 FCC To Study Interactive Television Market Jan 19 cnn FCC to study interactive television market Jan 19 cnn CBS Tinkers With Interactive TV, Inside 2/23/01 AT&T to test interactive TV service Sept 21, 2000 nandotimes Congress
- House Commerce Committee Wednesday, February 16, 2000 10:00 am in 2123 Rayburn House Office Building. Subcommittee on Telecommunications, Trade and Consumer Protection hearing titled "Video on the Internet: iCraveTV.com and Other Recent Developments in Webcasting."