2078 Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

15–2, adopted January 7, 2015, and 

released January 7, 2015. The full text 

of this document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street SW., Washington, 

DC 20554. This document will also be 

available via ECFS (http://www.fcc.gov/ 

cgb/ecfs/). (Documents will be available 

electronically in ASCII, Word 97, and/ 

or Adobe Acrobat.) This document may 

be purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc., 445 12th Street SW., 

Room CY–B402, Washington, DC 20554, 

telephone 1–800–478–3160 or via email 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an email to 

fcc504@fcc.gov or call the Commission’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). This document does 

not contain proposed information 

collection requirements subject to the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. Members of the public 

should note that from the time a Notice 

of Proposed Rule Making is issued until 

the matter is no longer subject to 

Commission consideration or court 

review, all ex parte contacts (other than 

ex parte presentations exempt under 47 

CFR 1.1204(a)) are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1208 for rules governing 

restricted proceedings. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television. 

Federal Communications Commission. 

Barbara A. Kreisman, 

Chief, Video Division, Media Bureau. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for Part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336, 

and 339. 

§ 73.622 [Amended] 

■ 2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Michigan is amended by adding 

channel 25 and removing channel 51 at 

Lansing. 

[FR Doc. 2015–00616 Filed 1–14–15; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 14–261; FCC 14–210] 

Promoting Innovation and Competition 

in the Provision of Multichannel Video 

Programming Distribution Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission propose new rules 

designed to better reflect the fact that 

video services are being provided 

increasingly over the Internet. 

Specifically, we propose to modernize 

our interpretation of the term 

‘‘multichannel video programming 

distributor’’ (‘‘MVPD’’) by including 

within its scope services that make 

available for purchase, by subscribers or 

customers, multiple linear streams of 

video programming, regardless of the 

technology used to distribute the 

programming. Such an approach will 

ensure both that incumbent providers 

will continue to be subject to the procompetitive, consumer-focused 

regulations that apply to MVPDs as they 

transition their services to the Internet 

and that nascent, Internet-based video 

programming services will have access 

to the tools they need to compete with 

established providers. 

DATES: Comments are due on or before 

February 17, 2015, and reply comments 

are due on or before March 2, 2015. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 14–261, by 

any of the following methods: 

• Federal Communications 

Commission’s Web Site: http://

fjallfoss.fcc.gov/ecfs2/. Follow the 

instructions for submitting comments. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by email: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for submitting 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Brendan Murray, 

Brendan.Murray@fcc.gov, of the Media 

Bureau, Policy Division, (202) 418–1573 

or Mary Margaret Jackson, 

MaryMargaret.Jackson@fcc.gov of the 

Media Bureau, (202) 418–1083. 

For additional information concerning 

the information collection requirements 

contained in this document, send an 

email to PRA@fcc.gov or contact Cathy 

Williams on (202) 418–2918. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking, FCC 14–210, 

adopted on December 17, 2014 and 

released on December 19, 2014. The full 

text of this document is available for 

public inspection and copying during 

regular business hours in the FCC 

Reference Center, Federal 

Communications Commission, 445 12th 

Street SW., CY–A257, Washington, DC, 

20554. This document will also be 

available via ECFS (http://www.fcc.gov/ 

cgb/ecfs/). (Documents will be available 

electronically in ASCII, Word 97, and/ 

or Adobe Acrobat.) The complete text 

may be purchased from the 

Commission’s copy contractor, 445 12th 

Street SW., Room CY–B402, 

Washington, DC 20554. To request these 

documents in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an email to 

fcc504@fcc.gov or call the Commission’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). 

Executive Summary 

In the Notice of Proposed Rulemaking 

(‘‘NPRM’’), we propose to update our 

rules to better reflect the fact that video 

services are being provided increasingly 

over the Internet. Specifically, we 

propose to modernize our interpretation 

of the term MVPD by including within 

its scope services that make available for 

purchase, by subscribers or customers, 

multiple linear streams of video 

programming, regardless of the 

technology used to distribute the 

programming. Such an approach will 

ensure both that incumbent providers 

will continue to be subject to the procompetitive, consumer-focused 

regulations that apply to MVPDs as they 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 2079 

transition their services to the Internet 

and that nascent, Internet-based video 

programming services will have access 

to the tools they need to compete with 

established providers. For readability 

throughout the NPRM, we use the term 

‘‘Internet-delivered’’ to refer to any 

service delivered using IP whether or 

not it uses the public Internet, except for 

cable service. 

Here the Commission faces, as it has 

before, the impact of technology 

transition. Incumbent cable systems 

have made plain their intent to use a 

new transmission standard that will 

permit cable systems to deliver video 

via IP, and other innovative companies 

are also experimenting with new 

business models based on Internet 

distribution. That is not surprising: 

Over-the-air television has moved from 

analog transmission to digital. The 

telephone networks of the 20th Century 

have become broadband networks, 

providing a critical pathway to the 

Internet. And, in our January 

Technology Transitions Order, the 

Commission encouraged experiments 

that assess the impact on consumers of 

the coming transition from traditional 

copper facilities to new 

telecommunications networks 

composed of fiber, copper, coaxial 

cable, and/or wireless connections. 

The Commission has recognized that 

innovation must be encouraged, but not 

at the expense of technology-neutral 

public policies. That is why the January 

Technology Transitions Order 

emphasized the importance of 

preserving competition, consumer 

protection, and public safety. And that 

is why the NPRM proposes to ensure 

that the rights and responsibilities of an 

MVPD are not jeopardized by changes in 

technology. This IP transition will 

enable cable operators to untether their 

video offerings from their current 

infrastructure, and could encourage 

them to migrate their traditional 

services to Internet delivery. With these 

changes on the horizon, it becomes 

important to interpret the statutory 

definition of MVPD to ensure that our 

rules apply sensibly and in a way that 

encourages innovation regardless of 

how service is delivered and that the 

pro-consumer values embodied in 

MVPD regulation will continue to be 

served. In so doing, we take note of the 

regulatory requirements that cable 

operators must adhere to as they use 

new technology to offer services, and we 

invite comment on the regulatory 

treatment of additional services that 

cable operators may offer. 

Adoption of a technology-neutral 

MVPD definition will not only preserve 

current responsibilities, it may create 

new competitive opportunities that will 

benefit consumers. Increasingly, 

companies—incumbents and new 

entrants alike—are interested in using 

the Internet as the transmission path for 

packages of video channels. In initiating 

this proceeding, our goal is to bring our 

rules into synch with the realities of the 

current marketplace and consumer 

preference where video is no longer tied 

to a certain transmission technology. 

Specifying the circumstances under 

which an Internet-based provider may 

qualify as an MVPD, possessing the 

rights as well as responsibilities that 

attend that status, may incent new entry 

that will increase competition in video 

markets. In particular, extending 

program access protections to Internetbased providers would allow them to 

‘‘access[] critical programming needed 

to attract and retain subscribers.’’ And 

extending retransmission consent 

protections and obligations to those 

providers would allow them to enter the 

market ‘‘for the disposition of the rights 

to retransmit broadcast signals.’’ 

Broadcast and cable-affiliated 

programming could make Internet-based 

services attractive to customers, who 

would access the services via 

broadband. The resulting increased 

demand for broadband may in turn 

provide a boost to the deployment of 

high-speed broadband networks. 

In the NPRM, we seek comment on 

possible interpretations of the term 

MVPD as used in the Communications 

Act of 1934, as amended (the ‘‘Act’’) and 

seek comment on how each of those 

interpretations would affect the industry 

and consumers. Below, we seek 

comment on two possible 

interpretations: We propose to interpret 

the term MVPD to mean distributors of 

multiple linear video programming 

streams, including Internet-based 

services and tentatively conclude that 

this interpretation is a reasonable 

interpretation of the Act, and is most 

consistent with consumer expectations 

and conditions in the industry. We also 

seek comment on an alternative 

interpretation that would require a 

programming distributor to have control 

over a transmission path to qualify as an 

MVPD and invite comment on whether 

this interpretation is consistent with the 

Act and Congressional intent. We also 

invite comment on how this 

interpretation would apply as 

companies begin to offer subscription 

linear video services over the Internet. 

We then seek comment on the effects 

that either interpretation would have on 

entities that are classified as MVPDs, 

consumers, and content owners. We 

seek comment on how each 

interpretation would benefit and burden 

entities that would be subject to our 

rules. We also ask whether we should 

consider exemption or waiver of certain 

regulations, if allowed under the statute. 

We seek comment on whether to modify 

our retransmission consent ‘‘good faith’’ 

negotiation rules with respect to 

Internet-based MVPDs to protect local 

broadcasters. We seek comment on what 

impact these interpretations would have 

on content owners, including 

broadcasters and cable-affiliated 

programmers. Finally, we seek comment 

on how to ensure that our interpretation 

will promote competition and 

broadband adoption, consistent with the 

Act and Commission policy. 

We also note that the fact that an 

entity uses IP to deliver cable service 

does not alter the classification of its 

facility as a cable system and does not 

alter the classification of the entity as a 

cable operator. In other words, those 

video programming services provided 

over the operator’s facilities remain 

subject to regulation as cable services. 

We seek comment on the regulatory 

status of purely Internet-based linear 

video programming services that cable 

operators and direct broadcast satellite 

(‘‘DBS’’) providers may choose to offer 

in addition to their traditional services. 

I. Background 

Section 602(13) of the Act defines an 

MVPD as ‘‘[A] person such as, but not 

limited to, a cable operator, a 

multichannel multipoint distribution 

service, a direct broadcast satellite 

service, or a television receive-only 

satellite program distributor, who makes 

available for purchase, by subscribers or 

customers, multiple channels of video 

programming.’’ The Act also defines the 

terms ‘‘channel’’ and ‘‘video 

programming,’’ which are used in the 

MVPD definition. Section 602(4) defines 

‘‘channel’’ as ‘‘a portion of the 

electromagnetic frequency spectrum 

which is used in a cable system and 

which is capable of delivering a 

television channel (as television 

channel is defined by the Commission 

by regulation).’’ And Section 602(2) of 

the Act defines ‘‘video programming’’ as 

‘‘programming provided by, or generally 

considered comparable to programming 

provided by, a television broadcast 

station.’’ 

On March 24, 2010, Sky Angel U.S., 

LLC (‘‘Sky Angel’’), a provider of 

multiple streams of prescheduled 

programming over the Internet, filed a 

complaint and petition for temporary 

standstill for program access relief, 

which is available only to MVPDs. On 

April 21, 2010, the Commission’s Media 

Bureau denied the petition for 

standstill, holding that Sky Angel failed 


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2080 Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 

to carry its burden of demonstrating that 

it is likely to succeed in showing on the 

merits that it is an MVPD entitled to 

seek relief under the program access 

rules. The Media Bureau determined 

that the term ‘‘channel’’ as used in the 

definition of MVPD appears to include 

a transmission path as a necessary 

element. Based on the limited record at 

the time, the Bureau was unable to find 

that Sky Angel provides its subscribers 

with a transmission path. Sky Angel’s 

complaint, a second petition for 

injunctive relief, a motion for sanctions, 

and discovery requests are pending. In 

2012, Sky Angel filed a Petition for Writ 

of Mandamus with the United States 

Court of Appeals for the D.C. Circuit, 

asking the court to require the 

Commission to adopt and release a final 

order on the merits of its complaint, and 

the court denied the Petition ‘‘without 

prejudice to renewal in the event of 

significant delay.’’ In March 2012, the 

Media Bureau issued a Public Notice in 

connection with the Sky Angel 

complaint, seeking comment on the 

most appropriate interpretation of the 

definition of an MVPD (the ‘‘March 

2012 Public Notice’’) to ensure that the 

Commission has the benefit of broad 

public input. In June 2014, Sky Angel 

notified the Commission that it had 

‘‘suspended its video and audio 

distribution services’’ in January 2014 

because it is unable ‘‘to acquire 

programming in a fair and 

nondiscriminatory way.’’ 

More recently, issues have arisen 

regarding the status of Aereo, Inc., a 

former provider of online linear video 

programming, under the Copyright Act 

and Communications Act. On June 25, 

2014, the Supreme Court found that 

Aereo violated certain copyright 

holders’ exclusive right to perform their 

works publicly as provided under the 

Copyright Act. Aereo then filed with the 

Copyright Office to pay statutory 

royalties to retransmit broadcast signals 

as a cable system. The Copyright Office 

accepted the filing ‘‘on a provisional 

basis,’’ pending ‘‘further regulatory or 

judicial developments,’’ including this 

Commission’s interpretation of the term 

MVPD and the outcome of the case that 

was pending before the U.S. District 

Court for the Southern District of New 

York. On November 21, 2014, Aereo 

filed to reorganize under Chapter 11 of 

the U.S. Bankruptcy Code. 

Comments filed in response to the 

March 2012 Public Notice reveal a wide 

range of views. By initiating this 

rulemaking proceeding, we propose an 

interpretation that we based on many 

comments in the record of that 

proceeding. But we continue to seek 

broad public input, including 

discussions with stakeholders, which 

will fully inform us as we seek to clarify 

the scope of the definition of MVPD. We 

note that the Media Bureau recently 

changed the ex parte status of the March 

2012 Public Notice. And today, the 

Bureau issued a decision holding the 

Sky Angel proceeding in abeyance 

pending the outcome of this proceeding 

and terminating the March 2012 Public 

Notice docket. These actions will allow 

parties to discuss with the Commission 

the definitional and policy issues raised 

herein without running afoul of the ex 

parte rules. 

II. Discussion 

As discussed below, we tentatively 

conclude that the statutory definition of 

MVPD includes certain Internet-based 

distributors of video programming. 

Specifically, we propose to interpret the 

term MVPD to mean all entities that 

make available for purchase, by 

subscribers or customers, multiple 

streams of video programming 

distributed at a prescheduled time. In 

reaching this conclusion, we understand 

that the market for Internet-based 

distribution of video programming is 

nascent and that companies continue to 

experiment with business models. The 

current business models include, but are 

not limited to, the following types of 

Internet-based video service offerings, 

including combinations of these 

offerings: Subscription Linear. We use 

this term to refer to Internet-based 

distributors that make available 

continuous, linear streams of video 

programming on a subscription basis. 

This category includes Sky Angel’s 

service as it existed before 2014 and 

Aereo’s service as it existed before the 

Supreme Court decision. Subscription 

On-Demand. We use this term to refer 

to Internet-based distributors that make 

video programming available to view 

on-demand on a subscription basis, 

allowing subscribers to select and watch 

television programs, movies, and/or 

other video content whenever they 

request to view the content without 

having to pay an additional fee beyond 

their recurring subscription fee. This 

category includes Amazon Prime Instant 

Video, Hulu Plus, and Netflix. 

Transactional On-Demand. We use this 

term to refer to Internet-based 

distributors that make video 

programming available to view ondemand, with consumers charged on a 

per-episode, per-season, or per-movie 

basis to rent the content for a specific 

period of time or to download the 

content for storage on a hard drive for 

viewing at any time. This category 

includes Amazon Instant Video, 

CinemaNow (Best Buy), Google Play, 

iTunes Store (Apple), Sony 

Entertainment Network, Vudu 

(Walmart), and Xbox Video (Microsoft). 

Ad-based Linear and On-Demand. We 

use this term to refer to Internet-based 

distributors that make video 

programming available to view linearly 

or on demand, with consumers able to 

select and watch television programs, 

movies, and/or other video content 

whenever they request on a free, adsupported basis. This category includes 

Crackle, FilmOn, Hulu, Yahoo! Screen, 

and YouTube as they exist today. 

Transactional Linear. We use this term 

to refer to non-continuous linear 

programming that is offered on a 

transactional basis. This category 

includes Ultimate Fighting 

Championship’s UFC.TV pay-per-view 

service. We invite commenters to 

identify other categories and examples 

of Internet-based distributors of video 

programming not mentioned here. 

As explained below, we seek 

comment on our tentative conclusion 

that entities that provide Subscription 

Linear video services are MVPDs as that 

term is defined in the Act because they 

make multiple channels of video 

programming available for purchase. We 

seek comment also on whether any of 

the other categories of Internet-based 

distributors of video programming 

identified above fall within the statutory 

definition of an MVPD. Because these 

other Internet-based distributors of 

video programming either (1) make 

programming available for free, and not 

‘‘for purchase’’ as required by the 

definition of an MVPD, or (2) do not 

provide prescheduled programming that 

is comparable to programming provided 

by a television broadcast channel, we 

believe they fall outside the statutory 

definition. We seek comment on this 

view. 

Below, we begin by seeking comment 

on our proposed interpretation of the 

definition of the term MVPD and on 

alternative interpretations. We then seek 

comment on the public policy 

ramifications of these alternatives and 

any other alternatives commenters may 

suggest. We note that an entity that uses 

IP to deliver cable service does not alter 

the classification of its facility as a cable 

system and does not alter the 

classification of the entity as a cable 

operator. Finally, we seek comment on 

how to treat Internet-based linear video 

programming services that cable 

operators and DBS providers may 

choose to offer in addition to their 

traditional services. 

Defining MVPD. To qualify as an 

MVPD under the Communications Act, 

an entity must ‘‘make[] available for 

purchase, by subscribers or customers, 


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Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 2081 

multiple channels of video 

programming.’’ The Commission has 

previously held that video distributed 

over the Internet qualifies as ‘‘video 

programming.’’ Thus, the key remaining 

definitional issue is how to interpret the 

phrase ‘‘multiple channels of video 

programming.’’ We seek comment on 

this issue as set forth below. 

The Act defines a ‘‘channel’’ as ‘‘a 

portion of the electromagnetic frequency 

spectrum which is used in a cable 

system and which is capable of 

delivering a television channel (as 

television channel is defined by the 

Commission by regulation).’’ As 

discussed in the Media Bureau’s March 

2012 Public Notice and in further detail 

below, there are at least two possible 

interpretations of the term ‘‘channel’’ 

within the definition of MVPD. We 

tentatively conclude that the best 

reading is that ‘‘channels of video 

programming’’ means streams of linear 

video programming (the ‘‘Linear 

Programming Interpretation’’). Under 

this interpretation, linear video 

programming networks, such as ESPN, 

The Weather Channel, and other sources 

of video programming that are 

commonly referred to as television or 

cable ‘‘channels,’’ would be considered 

‘‘channels’’ for purposes of the MVPD 

definition, regardless of whether the 

provider also makes available physical 

transmission paths. We also seek 

comment on an alternative 

interpretation under which the 

definition of MVPD would include only 

entities that make available 

transmission paths in addition to 

content, and thus exclude those 

Internet-based distributors of video 

programming that do not own or operate 

facilities for delivering content to 

consumers (the ‘‘Transmission Path 

Interpretation’’). We seek comment on 

which interpretation is most consistent 

with the text, purpose, legislative 

history, and structure of the Act and 

which interpretation best serves 

Congressional intent. We also invite 

commenters to identify any other 

interpretation of MVPD that is 

consistent with the statute and would 

better serve Congressional intent. For 

example, some commenters call for a 

‘‘functional equivalency’’ standard, 

whereby an entity would qualify as an 

MVPD if it looks and functions like a 

traditional MVPD from the perspective 

of consumers; others suggest that 

Internet-based distributors should be 

allowed to elect whether or not to avail 

themselves of MVPD status, taking on 

both the benefits of such status (such as 

program access) as well as the 

regulatory obligations. To the extent that 

any commenters favor these or other 

interpretations, they should explain 

how their proposed interpretation 

comports with the statute, how it would 

be administered or adjudicated in 

particular cases, and describe the policy 

ramifications. 

Proposed ‘‘Linear Programming 

Interpretation’’. Under our proposed 

rule, we would interpret the term 

‘‘channels of video programming’’ to 

mean prescheduled streams of video 

programming (which we refer to in this 

NPRM as ‘‘linear’’ programming), 

without regard to whether the same 

entity is also providing the transmission 

path. We believe that this is the better 

interpretation for three reasons: (i) It is 

a reasonable interpretation of the Act 

and most consistent with Congressional 

intent, (ii) it best aligns with consumer 

expectations and industry 

developments, and (iii) it is consistent 

with the common meaning of the word 

channel. We seek comment on the 

interpretation as set forth below. We 

seek comment also on our proposal to 

define ‘‘linear video’’ as a ‘‘stream of 

video programing that is prescheduled 

by the programmer.’’ 

We tentatively conclude that our 

proposed Linear Programming 

Interpretation is consistent with the 

language of the statute. The statutory 

definition of MVPD begins by stating 

that an MVPD is a ‘‘person such as, but 

not limited to, a cable operator, a 

multichannel multipoint distribution 

service, a direct broadcast satellite 

service, or a television receive-only 

satellite program distributor . . . .’’ In 

the Sky Angel Standstill Denial, the 

Media Bureau stated that, although the 

list is preceded by the phrase ‘‘not 

limited to,’’ making it clear that the list 

is illustrative rather than exclusive, it is 

also preceded by the phrase ‘‘such as,’’ 

which suggests that other covered 

entities should be ‘‘similar’’ to those 

listed. We tentatively conclude that the 

essential element that binds the 

illustrative entities listed in the 

provision is that each makes multiple 

streams of prescheduled video 

programming available for purchase, 

rather than that the entity controls the 

physical distribution network. 

Therefore, we believe that our 

interpretation is consistent with the 

illustrative list of MVPDs that the 

statutory definition provides. 

In addition, the Commission has 

previously held that an entity need not 

own or operate the facilities that it uses 

to distribute video programming to 

subscribers in order to qualify as an 

MVPD. Rather, an MVPD may use a 

third party’s distribution facilities in 

order to make video programming 

available to subscribers. We find, 

therefore, that our proposed 

interpretation is consistent with 

Commission precedent. We seek 

comment on this finding. 

We also find the term ‘‘channel’’ used 

in the context of the MVPD definition 

(i.e., ‘‘multiple channels of video 

programming’’) to be ambiguous. 

Further, we tentatively conclude that 

Congress did not intend the term 

‘‘channel’’ in this context to be 

interpreted in accordance with the 

definition in Section 602(4) of the Act, 

but rather intended the term to be given 

its ordinary and common meaning. The 

Act states that ‘‘the term ‘cable channel’ 

or ‘channel’ means a portion of the 

electromagnetic frequency spectrum 

which is used in a cable system and 

which is capable of delivering a 

television channel (as television 

channel is defined by the Commission 

by regulation). This definition was 

adopted in the 1984 Cable Act, which 

focused primarily on the regulation of 

cable television. In contrast, the term 

‘‘MVPD’’ was adopted by Congress eight 

years later in 1992, when new 

competitors to cable were emerging, and 

is specifically ‘‘not limited’’ solely to 

cable operators. Therefore, we 

tentatively conclude that we should not 

rely on the cable-specific definition of 

the term ‘‘channel’’ to interpret the 

definition of ‘‘MVPD,’’ which is 

explicitly defined to encompass video 

programming distributors that include, 

but are not limited to, cable operators. 

Moreover, using the cable-specific 

definition of ‘‘channel’’ to interpret the 

definition of ‘‘MVPD’’ does not seem 

consistent with the illustrative list of 

MVPDs that is included in the 

definition. For example, DBS providers 

are specifically included in the 

definition as MVPDs, but the linear 

streams of video programming that they 

provide to subscribers do not align with 

the definition of ‘‘channel’’ in Section 

602(4) of the Act, because that 

definition specifically refers to the 

electromagnetic spectrum ‘‘used in a 

cable system.’’ If Congress intended an 

entity to have control over the 

transmission path in order to be deemed 

an MVPD, presumably it would have 

explicitly specified that in the definition 

of MVPD, as it did with the definition 

of cable system. Therefore, we 

tentatively conclude that, when 

Congress defined an MVPD as an entity 

that ‘‘makes available . . . channels of 

video programming,’’ it did not intend 

to limit the types of entities that meet 

the definition to only those that control 

the physical method of delivery (i.e., a 

transmission path). As a consequence, 

we believe that this is a reasonable 


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2082 Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 

interpretation of the Act. We seek 

comment on this position. 

We believe that our proposed 

interpretation is consistent with 

Congress’s intent to define ‘‘MVPD’’ in 

a broad and technology-neutral way to 

ensure that it would not only cover 

video providers using technologies that 

existed in 1992, but rather be 

sufficiently flexible to cover providers 

using new technologies such as Internet 

delivery. The Act imposes important 

pro-consumer responsibilities on 

MVPDs. As incumbent MVPDs 

transition to IP delivery, we must ensure 

that the definition of MVPD is read 

broadly enough to ensure that 

consumers do not lose the benefits those 

provisions are intended to confer. For 

example, we note that the goals of the 

program access provision of the Cable 

Television Consumer Protection and 

Competition Act of 1992 (‘‘1992 Cable 

Act’’) are to increase competition and 

diversity in the video programming 

market, to increase the availability of 

programming to persons in rural areas, 

and to spur the development of 

communications technologies. It would 

frustrate those goals to exclude from 

coverage new technologies and services 

that develop. Consumers are watching 

more online subscription video, and 

incumbent operators and new entrants 

alike are experimenting with or 

planning to launch linear video services 

over the Internet. Therefore, we 

tentatively conclude that the Linear 

Programming Interpretation is most 

consistent with consumer expectations 

and industry trends, and we believe that 

Congress’s goals are best served by an 

interpretation of MVPD that 

accommodates changing technology. We 

seek comment on our tentative 

conclusion that our proposed 

interpretation is most consistent with 

consumer expectations and industry 

trends. To the extent that commenters 

disagree with our interpretation, they 

should address why an interpretation of 

MVPD that focuses on the physical 

delivery method an entity uses to 

provide video programming (i) would 

serve Congress’s goals, (ii) would 

promote innovation, and (iii) is 

consistent with the statute. 

Finally, certain commenters suggest 

that the term ‘‘channel’’ can be 

interpreted both in the ‘‘content’’ sense 

and in the ‘‘container’’ sense: ‘‘In a 

video context, the Act uses the term 

both in a ‘container’ sense, to refer to a 

range of frequencies used to transmit 

programming, and in a ‘content’ sense to 

refer to the programming itself, or the 

programmer.’’ Those commenters argue 

that, based on the context, the content 

sense applies when interpreting the 

definition of MVPD, ‘‘since only that 

reading is consistent with the Act’s procompetitive purposes.’’ We note that the 

legislative history of the 1992 Cable Act 

refers to ESPN as a ‘‘sports channel’’ 

and CNN as a ‘‘news channel’’; given 

that both of these are linear 

programming networks, this suggests 

that Congress used the term channel, at 

least in this instance, to refer to such 

programming networks and not to 

portions of the electromagnetic 

frequency spectrum. Commenters 

provide numerous examples of the use 

of the term ‘‘channel’’ in both the 

content sense (i.e., a linear video 

programming network) and the 

container sense (i.e., a range of 

frequencies used to transmit 

programming) in everyday usage and in 

dictionaries, as well as by Congress and 

the Commission. Because the term 

‘‘channel’’ as used in the definition of 

MVPD is ambiguous, we tentatively 

conclude that it is reasonable to read the 

term to have its common, everyday 

meaning of a stream of prescheduled 

video programming when we interpret 

the definition of MVPD. As discussed 

above, we believe our proposed 

interpretation is most consistent with 

the Act’s goals of increased video 

competition and broadband 

deployment. In addition, we believe that 

it is most consistent with consumer 

expectations because consumers are 

focused on the content they receive, 

rather than the specific method used to 

deliver it to them. We seek comment on 

this tentative conclusion. 

Scope of the Linear Programming 

Interpretation. We also seek comment 

on whether, under the Linear 

Programming Interpretation, we can and 

should carve out certain types of entities 

that make available multiple linear 

streams of video programming from the 

MVPD definition. If we interpret 

‘‘multiple channels of video 

programming’’ to mean multiple linear 

streams of video programming, could 

we, consistent with the statute, narrow 

the category of entities that would 

qualify as MVPDs? For example, are 

there niche online subscription 

programming providers or other small 

entities that would not be able to remain 

in business if they qualify as MVPDs? A 

‘‘multichannel’’ video programming 

distributor is required by definition to 

make multiple channels of video 

programming available. We seek 

comment on how to interpret the term 

‘‘multiple’’ in the definition of MVPD. 

Although we believe it is important to 

modernize our interpretation of MVPD 

to capture entities that provide service 

similar to or competitive with more 

traditional MVPD service but through 

new distribution methods, we also wish 

to ensure that our rules do not impede 

innovation by imposing regulations on 

business models that may be better left 

to develop unfettered by the rules 

applicable to MVPDs. Should we 

interpret the term MVPD to require that 

a certain number of channels of video 

programming, such as twenty, be made 

available? Would twenty channels be 

too low or too high? Is there justification 

for a different number? What if an entity 

makes multiple channels available 

nationwide, but makes only one channel 

available for purchase to each 

subscriber? Should we interpret the 

term ‘‘channels of video programming’’ 

to require a certain number of 

programming hours per day or per week 

or to exempt certain niche 

programmers? Is there justification to 

require eighteen hours of programming 

per day, seven days per week, or some 

other number? We tentatively conclude 

that an entity that makes linear services 

available via the Internet is an MVPD, 

and our regulations apply to all of the 

MVPD’s video services. Are there other 

factors that we should consider? For 

example, should we exempt from the 

interpretation of linear programming 

discrete, intermittent events that occur 

at prescheduled times, such as live 

individual sporting events? While these 

events are prescheduled by the 

programming provider, they are 

presented sporadically, in contrast to 

most television channels that broadcast 

continuously throughout the day. If 

such events are considered linear 

programming, our proposed Linear 

Programming Interpretation would 

appear to apply to online subscription 

video packages that stream multiple 

sporting events, such as those offered by 

Major League Baseball, Major League 

Soccer, the National Basketball 

Association, and the National Hockey 

League. We seek comment on whether 

distributors of these types of services 

should be included within our 

interpretation of MVPD and, if not, on 

the statutory basis for excluding them 

and bright-line tests that we could use 

to evaluate whether such an exclusion 

would apply. 

We tentatively conclude that we 

should interpret MVPD so that the 

definition would not apply to a 

distributor that makes available only 

programming that it owns—for example, 

sports leagues or stand-alone program 

services like CBS’s new streaming 

service. A potential consequence of the 

Linear Programming Interpretation 

would be that a programmer that 

decides to sell two or more of its own 


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programming networks directly to 

consumers online, either instead of or in 

addition to selling them through cable 

or DBS operators’ programming 

packages, might subject itself to the 

benefits and burdens of MVPD status. 

For example, if Disney were to offer, for 

purchase by subscribers, a package of 

linear feeds of the Disney Channel, 

Disney XD, and Disney Junior for online 

streaming to customers, would that 

make Disney an MVPD? Would this 

unduly limit consumer options? Would 

bringing such an offering into our 

MVPD regulations discourage 

innovation? We seek comment on our 

statutory authority to adopt our 

tentative conclusion. 

Under the Act, an entity is an MVPD 

only if it makes multiple channels of 

video programming ‘‘available for 

purchase.’’ We seek comment on what 

it means to make video programming 

available for purchase, particularly as 

that term would apply if we were to 

adopt our proposed Linear Programming 

Interpretation. We tentatively conclude 

that the term means making an offer to 

consumers to exchange video service for 

money. We seek comment on this 

tentative conclusion. Are there other 

forms of consideration that a consumer 

could use to purchase services? If a 

cable or satellite company offers its 

subscribers access to supplemental 

online linear video services without a 

separate charge, but as part of their paid 

television packages, does this offering 

constitute making the online services 

‘‘available for purchase’’? Do any cable 

or satellite companies charge 

subscribers for those services indirectly? 

Is there any way to trace general 

subscription fees specifically to 

supplemental online linear video 

services? We seek comment on how our 

proposed interpretation could affect 

new business models that do not 

conform with the traditional monthly 

subscription model, and whether we 

should treat those business models on a 

case-by-case basis. 

We also seek comment on how our 

proposed interpretation would apply to 

entities that are located overseas but 

make linear video programming 

networks available for purchase in the 

United States over the Internet. An 

entity could meet the definition of 

MVPD under our proposed definition 

even if it has no physical presence in 

the United States. We tentatively 

conclude that the Commission should 

not assert jurisdiction over these 

entities. If commenters disagree, they 

should provide the authority under 

which the Commission could assert 

jurisdiction. If we assert jurisdiction 

solely over entities with a physical 

presence in the United States, will some 

Internet-based distributors of video 

programming locate their operations 

overseas to avoid Commission 

regulation? Would the alternative 

interpretation discussed below, which 

would consider an entity to be an MVPD 

only if it maintains control over a 

transmission path, avoid this result by 

requiring an MVPD to have a 

jurisdictional presence in the United 

States? 

Alternative ‘‘Transmission Path 

Interpretation’’. We seek comment also 

on an alternative approach that would 

interpret the term channel in this 

context as requiring a transmission path. 

This is the approach for which the 

Media Bureau expressed tentative 

support in denying Sky Angel’s 

standstill request. Citing the statutory 

definition of ‘‘channel’’ as ‘‘a portion of 

the electromagnetic frequency spectrum 

which is used in a cable system and 

which is capable of delivering a 

television channel,’’ the Media Bureau 

expressed the tentative view that the 

term ‘‘channel’’ as used in the definition 

of MVPD ‘‘appear[s] to include a 

transmission path as a necessary 

element.’’ Under this interpretation, we 

would not consider Internet-based 

linear video providers to be MVPDs 

unless they control at least some portion 

of the physical means by which the 

programming is delivered—for example, 

via a physical cable that the provider 

owns or via spectrum that the provider 

is licensed to use. We seek comment on 

the Transmission Path Interpretation. 

How would we reconcile the 

Transmission Path Interpretation with 

previous Commission decisions that 

held that an entity need not own or 

operate the facilities that it uses to 

distribute video programming to qualify 

as an MVPD? Would an entity have to 

make available multiple transmission 

paths (or, using the language in the 

definition of ‘‘channel,’’ multiple 

‘‘portions of the electromagnetic 

frequency spectrum’’) to each subscriber 

or customer to qualify as an MVPD? Do 

all traditional MVPDs make available 

multiple ‘‘portions of the 

electromagnetic frequency spectrum’’ to 

each subscriber or customer, including 

cable operators using switched digital 

video technology or an IP-based system 

in which no unique transmission path is 

associated with any video programming 

stream? Is there a reasonable basis to 

believe that Congress intended to 

regulate as MVPDs only those entities 

that make available two or more 

transmission paths to each subscriber or 

customer, but not those that make 

available only one transmission path? If 

we adopt the Transmission Path 

Interpretation, how can we ensure that 

our regulations keep up with 

technology, particularly as incumbent 

MVPDs transition their services to 

Internet delivery? 

We also seek comment on whether 

Congress intended to promote only 

facilities-based competition in the video 

distribution market, which might 

support the Transmission Path 

Interpretation. The Conference Report 

accompanying the 1992 Cable Act 

includes a statement that Congress 

intended to promote ‘‘facilities-based’’ 

competition. Moreover, the Commission 

has previously stated that ‘‘ ‘[f]acilitiesbased competition’ is a term used in the 

legislative history of the Act to 

emphasize that program competition 

can only become possible if alternative 

facilities to deliver programming to 

subscribers are first created. The focus 

in the 1992 Cable Act is on assuring that 

facilities-based competition develops.’’ 

On the other hand, the ABC/CBS/NBC 

Affiliates note that ‘‘there is but one 

reference to ‘facilities-based 

competition’ in the lengthy House 

Report. . . . Certainly, that single 

reference cannot support the 

incorporation of a ‘transmission path’ 

requirement into a statutory definition 

that does not, on its face, contain any 

such restriction.’’ Accordingly, we seek 

comment on whether Congress sought to 

increase facilities-based competition 

exclusively, or sought to encourage 

competition to incumbent cable 

operators more generally, regardless of 

how the competitive service is 

delivered. 

Scope of the Transmission Path 

Interpretation. As we note above, 

incumbent MVPDs are obtaining rights 

to distribute content online at a rapid 

pace and appear prepared to launch 

online linear video services that are not 

tied to their facilities. We seek comment 

on our regulatory authority under the 

Transmission Path Interpretation in 

these cases. The Transmission Path 

Interpretation seems difficult to apply in 

certain cases because an entity’s status 

would change depending on how and 

where the subscriber receives the 

content. For example, consider a 

subscriber who views video at her home 

on a tablet over broadband 

infrastructure that the video distributor 

owns, and then visits a local coffee shop 

and views video on that same tablet via 

the Internet using broadband 

infrastructure that the video distributor 

does not own. In that case, the video 

provider would be an MVPD at the 

subscriber’s home, but not at the coffee 

shop. We believe that this would lead to 

regulatory uncertainty, thus providing 


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more support for the Linear 

Programming Interpretation. We seek 

comment on this analysis. 

We invite comment on any other 

interpretation the Commission should 

consider in addition to the Linear 

Programming Interpretation and the 

Transmission Path Interpretation. 

Regulatory Implications of Alternative 

Interpretations. Below, we seek 

comment on the policy ramifications of 

the various interpretations set forth 

above. To the extent possible, we 

encourage commenters to quantify any 

costs and benefits and submit 

supporting data. In addition to the 

specific effects that we ask about below, 

we invite commenters to identify other 

possible effects of the Linear 

Programming Interpretation and the 

Transmission Path Interpretation and 

how those effects should influence our 

interpretation. 

We realize that under our proposed 

Linear Programming Interpretation, 

several new and planned services may 

be considered MVPD services. On the 

one hand, DISH, Sony, and Verizon 

have each announced linear Internetbased subscription video services whose 

launch is imminent. These services 

reportedly will carry programming from 

some of the largest content companies 

in the world. On the other hand, Aereo, 

FilmOn, and Sky Angel launched or 

planned to launch Internet-based 

subscription video services, but they 

claim that regulatory uncertainty has 

limited their ability to develop a 

subscriber base, limited investment in 

their services, and hindered their ability 

to compete. In light of these contrasting 

examples, we seek comment on whether 

the privileges and obligations set forth 

in this section tilt in favor of or against 

our proposed Linear Programming 

Interpretation. Would the proposal (i) 

give innovative companies access to 

programming that consumers want, or 

(ii) unduly and unnecessarily burden 

companies seeking to offer innovative 

new services? 

Application of MVPD-Specific 

Regulatory Privileges and Obligations to 

Internet-Based Distributors of Video 

Programming. As discussed in further 

detail below, our proposed 

interpretation would ensure that 

incumbent MVPDs do not evade our 

regulations by migrating their services 

to the Internet. It would also allow 

Internet-based distributors of video 

programming, including those that do 

not control any facilities, to take 

advantage of the privileges of MVPD 

status but would also require them to 

comply with the legal obligations 

applicable to MVPDs. Conversely, the 

Transmission Path Interpretation could 

allow many if not most Internet-based 

distributors of video programming to 

avoid regulation, including obligations 

that promote important public interest 

benefits, and would also deprive them 

of certain regulatory privileges. We seek 

comment on these policy ramifications 

below. 

General Privileges and Obligations. 

An entity that meets the definition of an 

MVPD is subject to both privileges and 

legal obligations under the 

Communications Act and the 

Commission’s rules. The regulatory 

privileges of MVPD status include the 

right to seek relief under the program 

access rules and the retransmission 

consent rules. Among the regulatory 

obligations of MVPDs are statutory and 

regulatory requirements relating to (i) 

program carriage; (ii) the competitive 

availability of navigation devices 

(including the integration ban); (iii) 

good faith negotiation with broadcasters 

for retransmission consent; (iv) Equal 

Employment Opportunity (‘‘EEO’’); (v) 

closed captioning; (vi) video 

description; (vii) access to emergency 

information; (vi) signal leakage; (vii) 

inside wiring; and (viii) the loudness of 

commercials. 

To the extent that an Internet-based 

distributor of video programming falls 

within the definition of an MVPD, it 

will be able to take advantage of the 

privileges of MVPD status but will also 

be subject to MVPD obligations, unless 

the Commission waives some or all of 

them if authorized to do so. We seek 

comment on the overall costs and 

benefits of applying these regulatory 

privileges and obligations to Internetbased distributors of video 

programming, including incumbent 

operators who migrate to Internet 

delivery. We also seek comment on 

specific privileges and obligations 

below. Would waiver or exemption from 

certain regulations be an appropriate 

approach for regulating Internet-based 

distributors? If so, what regulations 

should be waived or modified to exempt 

Internet-based distributors, and do we 

have authority to do so under the Act? 

Alternatively, does the statute permit us 

to allow these entities to choose 

whether they wish to be classified as 

MVPDs? 

Would subjecting Internet-based 

distributors to MVPD regulations deter 

investment in new technologies and 

drive some current or prospective 

Internet-based distributors from the 

market? On the other hand, would 

subjecting Internet-based distributors to 

MVPD regulations provide regulatory 

certainty that could reassure consumers 

and spur investment by service 

providers? To what extent should we 

consider increasing consumer adoption 

of non-traditional MVPDs as a factor in 

regulatory treatment of entities that 

provide similar services but use 

different delivery mechanisms? If 

Internet-based distributors compete 

with traditional MVPDs, should they be 

subject to the same regulatory 

obligations as traditional MVPDs? 

Specific Privileges. Below, we seek 

comment on the specific privileges of 

MVPD status and how they would apply 

to Internet-based distributors of video 

programming. Would applying the 

privileges of MVPD status to Internetbased distributors of video programming 

impose costs on third parties, such as 

cable-affiliated programmers and 

broadcasters? To what extent would the 

public be harmed if these privileges did 

not extend to Internet-based distributors 

of video programming? 

Program Access. As required by 

Section 628 of the Act, the 

Commission’s program access rules 

provide certain protections to MVPDs in 

their efforts to license cable-affiliated 

programming. These rules: (i) Prohibit a 

cable operator or its affiliated, satellitedelivered programmer from engaging in 

‘‘unfair methods of competition or 

unfair or deceptive acts or practices’’ 

that have the ‘‘purpose or effect’’ of 

‘‘hinder[ing] significantly or 

prevent[ing]’’ an MVPD from providing 

programming to subscribers or 

consumers (the ‘‘unfair act’’ 

prohibition); (ii) prohibit a cable 

operator from unduly or improperly 

influencing the decision of its affiliated, 

satellite-delivered programmer to sell, 

or unduly or improperly influencing the 

programmer’s prices, terms, and 

conditions for the sale of, satellitedelivered programming to any 

unaffiliated MVPD (the ‘‘undue or 

improper influence’’ rule); and (iii) 

prohibit a cable-affiliated, satellitedelivered programmer from 

discriminating in the prices, terms, and 

conditions of sale or delivery of 

satellite-delivered programming among 

or between competing MVPDs (the 

‘‘non-discrimination’’ rule). To the 

extent that an MVPD believes that a 

cable-affiliated programmer has violated 

these rules, it may file a complaint with 

the Commission. 

If the program access rules were to 

apply, would cable-affiliated 

programmers be required to negotiate 

with and license programming to 

potentially large numbers of Internetbased distributors? How will this impact 

the value of cable-affiliated 

programming to traditional MVPDs, 

especially as compared to non-cableaffiliated programming? To the extent 

that licensing programming to a 


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particular Internet-based distributor 

presents reasonable concerns about 

signal security and piracy, do the 

program access rules adequately address 

this issue by recognizing these concerns 

as a legitimate reason for a cableaffiliated programmer to withhold 

programming from an MVPD? Would 

extending the reach of the program 

access rules have a positive effect for 

consumers? 

We also seek comment on whether 

and how our proposed rule and 

alternative interpretations would impact 

competition in the video distribution 

market (both at present and in the 

future), specifically with respect to the 

program access rules. Among other 

things, the program access rules are 

intended to prevent cable-affiliated 

programmers from discriminating 

among similarly situated MVPDs. If 

Internet-based distributors of video 

programming are deemed not to be 

MVPDs because they do not make 

available transmission paths (and 

therefore are ineligible for the benefits 

of the program access rules), would 

there be any regulatory or other 

constraint that would prevent a cableaffiliated programmer from making its 

affiliated programming available for 

online distribution to only certain 

Internet-based distributors of video 

programming, such as those owned by 

its affiliated cable operator, but not to 

those owned by other MVPDs? In such 

a scenario, because the cable-affiliated 

programmer would not be 

differentiating among ‘‘MVPDs,’’ would 

different treatment be permissible under 

the program access rules? How would 

this impact competition in the video 

distribution market? Cablevision 

contends that extending the program 

access rules to Internet-based 

distributors would give them too much 

flexibility compared to existing MVPD 

competitors. Is this a concern that we 

should consider, and if so, why? We 

note that the Commission receives few 

program access complaints; should this 

affect our analysis? Or does it reflect 

that programmers are following our 

program access rules and they are 

working? 

Retransmission Consent. Section 

325(b) of the Act benefits MVPDs by 

requiring broadcasters to negotiate in 

good faith with MVPDs for 

retransmission consent and prohibiting 

broadcasters from negotiating exclusive 

retransmission consent agreements with 

any MVPD. Absent these provisions, 

broadcasters could potentially refuse to 

negotiate with and thereby withhold 

their signals from MVPDs that wish to 

carry these signals. To the extent that an 

MVPD believes that a broadcaster has 

violated these provisions, it may file a 

complaint with the Commission. 

We seek comment on the impact that 

our proposed interpretation of the 

definition of MVPD and alternative 

interpretations would have on the 

retransmission consent process. Under 

our proposal, would the retransmission 

consent rules force broadcasters to 

negotiate with and license their signals 

to potentially large numbers of Internetbased distributors? We seek comment 

also on whether and how competition in 

the video distribution market (both at 

present and in the future) would be 

impacted if Internet-based distributors 

of video programming are not 

considered MVPDs and therefore are not 

able to benefit from the retransmission 

consent rules. 

Section 325(b)(1)(A) of the Act 

provides that ‘‘no cable system or other 

multichannel video programming 

distributor’’ shall retransmit a broadcast 

signal without the broadcaster’s 

consent. But an entity wishing to 

retransmit a broadcast signal also must 

obtain authorization to publicly perform 

the copyrighted works within the 

broadcast signal. If we adopt the Linear 

Programming Interpretation and the 

Copyright Office does not afford 

statutory licenses to Internet-based 

video providers, how would we 

construe a broadcaster’s obligation to 

negotiate in good faith? What effect 

should the answer to that question have 

on our policy analysis? 

Specific Obligations. Below, we seek 

comment on specific obligations 

imposed on MVPDs and how those 

obligations would apply to Internetbased distributors of video 

programming. How costly would it be 

for Internet-based distributors of video 

programming to comply with these 

regulations? Would the public be 

harmed if these obligations did not 

extend to Internet-based distributors of 

video programming and such 

distribution became prevalent? 

The interpretation of MVPD that we 

ultimately adopt in this proceeding may 

subject certain Internet-based 

distributors of video programming to 

Commission regulation that are not 

currently subject to such regulation. 

What transition period should we allow 

these entities to come into compliance 

with each of the relevant rules? 

Program Carriage. The program 

carriage rules prohibit MVPDs from (i) 

requiring a financial interest in a video 

programming vendor’s program service 

as a condition for carriage; (ii) coercing 

a video programming vendor to provide, 

or retaliating against a vendor for failing 

to provide, exclusive rights as a 

condition of carriage; or (iii) 

unreasonably restraining the ability of 

an unaffiliated video programming 

vendor to compete fairly by 

discriminating in video programming 

distribution on the basis of affiliation or 

nonaffiliation of vendors in the 

selection, terms, or conditions for 

carriage. To the extent that a 

programming vendor believes that an 

MVPD is not in compliance with these 

rules, it may file a complaint with the 

Commission. 

What practical impact, if any, would 

these rules have on Internet-based 

distributors of video programming? As 

we note above, large, established cable 

operators, DBS providers, and 

technology companies have announced 

plans to launch Internet-based video 

programming services that would be 

MVPD services under the Linear 

Programming Interpretation. If these 

companies follow through with these 

plans, absent application of the program 

carriage rules there may be no 

regulatory constraint preventing them 

from demanding a financial interest or 

exclusive rights from programmers as a 

condition for carriage. Does this argue in 

favor of adopting an interpretation of 

MVPD that would cover providers of 

these services under the program 

carriage rules? Moreover, as more 

Internet-based distributors invest in 

their own programming, they may have 

an incentive to favor their affiliated 

programming over unaffiliated 

programming on the basis of affiliation. 

We seek comment on the effect that the 

alternative interpretations will have on 

negotiations with programmers and 

Internet-based video programming 

services. What are the costs and benefits 

of applying the program carriage 

obligations to Internet-based video 

programming services? 

Retransmission Consent. As discussed 

above, Section 325(b)(1)(A) of the Act 

provides that ‘‘No cable system or other 

multichannel video programming 

distributor shall retransmit the signal of 

a broadcasting station, or any part 

thereof, except—(A) with the express 

authority of the originating 

station. . . .’’ Thus, to the extent that 

an Internet-based distributor of video 

programming qualifies as an MVPD, it 

must receive the consent of the 

broadcaster before retransmitting the 

broadcaster’s signal. Moreover, Section 

325(b) of the Act imposes an obligation 

on MVPDs to negotiate in good faith 

with broadcasters in obtaining 

retransmission consent. If a broadcaster 

believes that an MVPD has violated 

these provisions, it may file a complaint 

with the Commission. 

We seek comment above on how the 

retransmission consent rules can benefit 


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2086 Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 

MVPDs, as we propose to interpret that 

term. We now seek comment on the 

practical impact the obligations of 

MVPDs under the retransmission 

consent rules would have on Internetbased distributors of video programming 

that qualify as MVPDs. What impact 

will the obligation to negotiate in good 

faith with broadcasters have on the 

resources of Internet-based distributors 

of video programming that qualify as 

MVPDs? In particular, will Internetbased distributors of video programming 

that operate on a nationwide basis have 

to engage in negotiations with 

thousands of broadcasters throughout 

the nation? 

Are some Internet-based distributors 

of video programming likely to prefer 

not to carry broadcast signals? For 

example, to the extent that an Internetbased provider provides service 

nationwide it may prefer not to offer 

local content. In that case, would the 

good faith negotiation requirements 

allow these distributors to simply reject 

all carriage terms offered by a 

broadcaster and to refrain from making 

any carriage offers of their own? Or, 

would this conduct amount to a 

violation of the duty to negotiate in 

good faith? Would it matter whether the 

distributor declined to negotiate with 

any broadcast stations? How will the 

answers to these questions impact the 

business models of Internet-based 

distributors of video programming that 

qualify as MVPDs but would prefer not 

to carry broadcast signals? Is it likely or 

possible that Internet-based distributors 

will want to carry broadcast network 

programming, or to carry broadcast 

stations nationwide? 

How do network affiliation 

agreements impact the carriage of 

broadcast stations on Internet-based 

MVPDs? Specifically, to what extent do 

existing network affiliation agreements 

limit or prohibit local network stations’ 

ability to grant retransmission consent 

rights to Internet-based MVPDs? For 

example, do any network affiliation 

agreements prohibit a local networkaffiliated station from permitting the 

retransmission of the entirety of its 

signal over the Internet? Do they limit 

the retransmission of network 

programming over the Internet? Would 

limiting or prohibiting these provisions 

harm localism? 

Other MVPD Obligations. Closed 

Captioning. Section 79.1 of the 

Commission’s rules (the ‘‘television 

closed captioning rules’’) requires 

MVPDs to provide closed captioning, 

defined as the ‘‘visual display of the 

audio portion of video programming 

pursuant to the technical specifications 

set forth in this part.’’ Internet video 

services are not subject to these 

requirements. Internet-based 

distributors of video programming, 

however, are subject to the 

Commission’s Internet protocol (‘‘IP’’) 

closed captioning requirements set forth 

in § 79.4 of the Commission’s rules (the 

‘‘IP closed captioning rules’’) to the 

extent that they make video 

programming available directly to end 

users through a distribution method that 

uses IP. The IP closed captioning rules 

are narrower than the television closed 

captioning rules, insofar as the IP 

closed-captioning rules require closed 

captioning of IP-delivered video 

programming only if the programming is 

published or exhibited on television 

with captions, whereas the television 

closed captioning rules require closed 

captioning for all new nonexempt 

English- and Spanish-language video 

programming. The Commission has 

explained that the ‘‘IP closed captioning 

rules do not apply to traditional 

managed video services that MVPDs 

provide to their MVPD customers 

within their service footprint, regardless 

of the transmission protocol used; 

rather, such services are already subject 

to § 79.1 of the Commission’s rules.’’ To 

the extent that some Internet-based 

distributors of video programming 

qualify as MVPDs, how will this impact 

their obligations with respect to closed 

captioning? Will they be subject to 

§ 79.1 or § 79.4 of the Commission’s 

rules, or will the Commission need to 

develop another set of requirements 

tailored to these services? Will we need 

to amend our closed captioning rules if 

we adopt the Linear Programming 

Interpretation, and if so, how? 

Video Description. As required by the 

Twenty-First Century Communications 

and Video Accessibility Act of 2010, the 

Commission’s rules require MVPD 

systems that serve 50,000 or more 

subscribers to provide 50 hours per 

quarter of video description, which 

makes video programming accessible to 

people who are blind or visually 

impaired, on each of the five most 

popular nonbroadcast networks. In 

general, MVPDs of any size must pass 

through any video description provided 

with programming they carry, including 

broadcast channels, as long as they have 

the technical capability to do so. Section 

79.105 of the Commission’s rules 

requires apparatus designed to receive 

or play back video programming to 

decode and make available the 

secondary audio stream, if technically 

feasible, to facilitate the transmission 

and delivery of video description. We 

seek comment on the costs as well as 

the practical impact these obligations 

will have on an Internet-based 

distributor of video programming that 

qualifies as an MVPD. Are there 

attributes of Internet-based distributors 

of video programming that make 

compliance with these requirements 

more burdensome than for traditional 

MVPDs? We also seek comment on our 

authority to extend our video 

description regulations to Internetdelivered MVPDs under the Linear 

Programming Interpretation. Will we 

need to amend our video description 

rules if we adopt the Linear 

Programming Interpretation, and if so, 

how? 

Accessibility of Emergency 

Information. Section 79.2 of the 

Commission’s rules requires MVPDs to 

comply with certain requirements 

pertaining to the accessibility of 

emergency information by persons with 

disabilities. And to make emergency 

information accessible to individuals 

who are blind or visually impaired, 

§ 79.105 of the Commission’s rules 

requires apparatus designed to receive 

or play back video programming to 

decode and make available the 

secondary audio stream, if technically 

feasible. We seek comment on the costs 

as well as the practical impact these 

obligations will have on Internet-based 

distributors of video programming that 

qualify as MVPDs. Will we need to 

amend our emergency information 

accessibility rules if we adopt the Linear 

Programming Interpretation, and if so, 

how? 

Accessible User Interfaces, Guides, 

and Menus. Section 79.108 of the 

Commission’s rules requires MVPDs to 

‘‘ensure that the on-screen text menus 

and guides provided by navigation 

devices for the display or selection of 

multichannel video programming are 

audibly accessible in real time upon 

request by individuals who are blind or 

visually impaired.’’ We seek comment 

on the costs and the practical impact 

these obligations will have on Internetbased distributors of video programming 

that qualify as MVPDs, particularly in 

light of the fact that digital apparatus 

(aside from navigation devices) that are 

designed to receive digital video 

(including IP video) must be accessible 

to and useable by individuals who are 

blind or visually impaired. Will we 

need to amend our user interface 

accessibility rules if we adopt the Linear 

Programming Interpretation, and if so, 

how? 

Equal Employment Opportunities 

(‘‘EEO’’). The Commission’s EEO rules 

apply to MVPDs. In general terms, these 

rules (i) require MVPDs to provide equal 

opportunity in employment to all 

qualified persons and prohibit MVPDs 


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from discriminating in employment 

based on race, color, religion, national 

origin, age, or sex; (ii) require MVPDs to 

engage in certain outreach and 

recruitment activities; and (iii) require 

MVPDs to comply with certain reporting 

and recordkeeping requirements. We 

seek comment on the practical impact 

these obligations will have on Internetbased distributors of video programming 

that qualify as MVPDs. Do Internetbased distributors of video programming 

currently meet some or all of these 

requirements? Will we need to amend 

our EEO rules if we adopt the Linear 

Programming Interpretation, and if so, 

how? 

Navigation Devices. Section 629 of the 

Act directs the Commission to adopt 

regulations to assure the commercial 

availability of navigation devices used 

by consumers to access services from 

MVPDs. The Commission has adopted 

several regulations that allow 

consumers to attach non-harmful 

devices to MVPD networks, require 

MVPDs to offer separate conditional 

access elements if they use navigation 

devices to perform conditional access 

functions, and prohibit MVPDs from 

using integrated conditional access in 

the devices that they lease or sell to 

their consumers. We seek comment on 

the practical impact as well as the costs 

these obligations will have on Internetbased distributors of video programming 

that qualify as MVPDs. To what extent 

do Internet-based distributors of video 

programming use navigation devices in 

the provision of their video 

programming service? If they do use 

such devices, do they currently meet 

these requirements? What devices do 

they use to provide programming to 

subscribers? Sky Angel, for example, 

states that its service cannot be viewed 

without its ‘‘proprietary set-top box, 

which Sky Angel directly and remotely 

controls at all times for purposes 

ranging from periodic service and 

software updates to service activation or 

termination.’’ Do Internet-based 

distributors meet the requirements for 

an exemption from the integration ban? 

Are there aspects of Internet-based 

video services that make compliance 

with these requirements more 

burdensome than for traditional 

MVPDs? Will we need to amend our 

navigation device rules if we adopt the 

Linear Programming Interpretation, and 

if so, how? 

Signal Leakage. The Commission’s 

rules require specified MVPDs to 

comply with certain technical rules 

pertaining to signal leakage, as well as 

reporting and notification requirements 

related thereto. We expect that in 

general MVPDs that use Internet 

protocol to deliver video will not use 

aeronautical frequencies and thus will 

not be subject to these requirements. We 

seek comment on this expectation, and 

any practical impact these obligations 

will have on Internet-based distributors 

of video programming that qualify as 

MVPDs. Will we need to amend our 

signal leakage rules if we adopt the 

Linear Programming Interpretation, and 

if so, how? 

Inside Wiring. The Commission’s 

cable inside wiring rules apply to all 

MVPDs. In general terms, these rules 

govern the disposition of home wiring 

and home run wiring after a subscriber 

terminates service. To what extent, if 

any, would these obligations affect 

Internet-based distributors of video 

programming that qualify as MVPDs, 

especially if they do not control the 

‘‘last mile’’ of the transmission path 

used to deliver video programming to 

consumers but are affiliated with an 

entity that controls the transmission 

path? We expect that if we adopt the 

Linear Programming Interpretation that 

these inside wiring rules would not 

apply to Internet-based distributors of 

video programming. 

Commercial Loudness. As required by 

the CALM Act, the Commission’s rules 

require MVPDs to ensure that 

commercials are transmitted to 

consumers at an appropriate loudness 

level in accordance with a specified 

industry standard. Depending on the 

size of the MVPD and the type of the 

commercial at issue (i.e., inserted by the 

MVPD or embedded in the programing 

by a third-party), the Commission’s 

rules may require an MVPD to install 

equipment and associated software or 

perform spot checks or both. Do these 

requirements need to be modified to 

apply to Internet-based distributors of 

video programming that qualify as 

MVPDs, and if so, how? If the 

requirements do need to be modified, 

are there ways to make the rules less 

burdensome for Internet-based 

distributors of video programming while 

meeting our statutory mandates? 

MDU Access. The Commission’s rules 

prohibit cable operators, common 

carriers (or their affiliates) that provide 

video programming, and OVS operators 

from enforcing or executing any 

provision in a contract that grants to it 

the exclusive right to provide any video 

programming service to a Multiple 

Dwelling Unit. The Commission has 

sought comment on whether to extend 

this prohibition to other MVPDs. To the 

extent the Commission were to do so, 

what impact, if any, would this 

prohibition have on Internet-based 

distributors of video programming that 

qualify as MVPDs? Is there any way a 

landlord could restrict a tenant’s ability 

to access certain content over the 

Internet to prevent a tenant from 

accessing an Internet-based linear video 

service? Will we need to amend our 

MDU access rules if we adopt the Linear 

Programming Interpretation, and if so, 

how? 

Other Regulatory Issues. We also seek 

comment on how other regulations 

should account for Internet-based 

distributors of video programming that 

qualify as MVPDs. For example, should 

we extend any cable or satellite-specific 

regulations to MVPDs more generally? If 

so, what would be our statutory basis for 

doing so? 

Impact on Content Owners. As 

discussed in this section, our 

interpretation of the definition of an 

MVPD may impact content owners in 

their negotiations with broadcasters, 

cable networks, and MVPDs. We seek 

comment on these issues below. 

Broadcast Content. Section 111 of the 

Copyright Act provides ‘‘cable systems’’ 

(as defined by the Copyright Act) a 

statutory license to retransmit 

copyrighted broadcast performances if 

the ‘‘cable system’’ pays a statutory fee 

for those performances. Some content 

creators and owners contend that the 

Commission, in interpreting the 

definition of MVPD in the 

Communications Act, should be 

cognizant of the interplay between 

Section 111 of the Copyright Act and 

the Communications Act and even 

suggest that a Commission decision 

interpreting the definition of MVPD to 

include Internet-based distributors 

would conflict with copyright law. But 

the market and legal landscape has 

changed significantly since content 

creators and owners made those claims. 

Therefore, we ask commenters to update 

the record with respect to how 

expanding the definition of MVPD in 

the Communications Act to include 

some Internet-based distributors 

interrelates with copyright law. 

Cable-Affiliated Content. Through 

application of the program access rules, 

Internet-based distributors that qualify 

as MVPDs will be entitled to nondiscriminatory access to cable-affiliated 

networks. Generally speaking, a 

programmer licenses content from 

various content creators, aggregates the 

content into a network, and then 

licenses the network to MVPDs for 

distribution. Discovery claims, however, 

that cable-affiliated networks cannot 

license all of the content displayed on 

their networks for distribution on the 

Internet because they frequently do not 

possess the right to authorize Internet 

distribution of that content. Rather, 

Discovery argues that (i) content 


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creators frequently retain for themselves 

the rights to Internet distribution in 

order to generate a separate revenue 

stream by displaying the content on 

their own Web sites or by selling the 

content to other video providers; and (ii) 

obtaining Internet distribution rights is 

simply too expensive for some 

networks. What effect should the 

Copyright Office’s decisions have on our 

statutory and policy analysis? 

To what extent do cable-affiliated 

networks possess—or have the ability to 

negotiate for—the right to authorize 

distribution of content displayed on 

their network over the Internet? If we 

adopt the Linear Video Interpretation, 

what impact does that have on existing 

rights for content distribution? We note 

that some cable-affiliated networks are 

made available over the Internet to 

authenticated MVPD subscribers. Does 

this reflect that cable-affiliated 

programmers possess the right to 

authorize distribution of content 

displayed on their network over the 

Internet? Does the concern about lack of 

rights to authorize Internet distribution 

of content apply only with respect to 

content not owned by the network? To 

what extent do cable-affiliated networks 

own the content displayed on their 

networks (or are affiliated with the 

content creators or otherwise possesses 

all of the rights with respect to 

distribution of that content)? To what 

extent is the content displayed on cableaffiliated networks owned by entities 

unaffiliated with the network? 

Would or should the adoption of the 

proposed definition of an MVPD have 

any effect on a cable-affiliated network 

that does not possess the right to 

authorize Internet distribution of 

content displayed on its network? In 

other words, would or should the 

network be required to obtain such 

rights to comply with the program 

access rules if certain Internet-based 

distributors qualify as MVPDs? We seek 

comment on how the resolution of this 

question would impact content creators, 

cable-affiliated programmers, and 

MVPDs, either traditional or Internetbased. We also seek comment on our 

authority to require entities to enter into 

contracts for these distribution rights. 

Non-Broadcast, Non-Cable-Affiliated 

Content. If we were to require cableaffiliated networks to obtain Internet 

distribution rights from content creators 

to comply with the program access 

rules, what impact, if any, would or 

should this have on non-cable-affiliated 

networks? For example, Ovation claims 

that, if cable-affiliated networks are 

required to obtain Internet distribution 

rights, ‘‘marketplace pressures would 

foreseeably require other networks to do 

the same.’’ We seek comment on this 

concern. 

Regulatory Treatment of Cable 

Operators and DBS Providers that 

Provide Linear Video Services via IP. It 

seems evident that merely using IP to 

deliver cable service does not alter the 

classification of a facility as a cable 

system or of an entity as a cable 

operator. That is, to the extent an 

operator may provide video 

programming services over its own 

facilities using IP delivery within its 

footprint it remains subject to regulation 

as a cable operator. At the same time, 

we understand that some cable 

operators and DBS providers are 

exploring new business models that 

might be indistinguishable from other 

over-the-top (‘‘OTT’’) services—that is, 

linear video services that travel over the 

public Internet and that cable operators 

do not treat as managed video services 

on any cable system. As mentioned 

above, cable operators and DBS 

providers are obtaining rights for online 

distribution of content, and some have 

launched or may soon launch Internetbased video programming services. 

Below, we seek comment on the 

regulatory treatment of national OTT 

video services that a cable operator or 

DBS provider may provide nationally– 

as contrasted to the traditional services 

it offers. 

Cable Service Provided via IP Over the 

Operator’s Facilities. The Act defines a 

cable operator as, essentially, an entity 

that provides cable service over a cable 

system. Thus, we must interpret the 

three terms—cable service, cable 

system, and cable operator—together to 

determine the proper regulatory 

treatment of IP-based services provided 

by cable operators. The Act defines 

cable service as ‘‘(A) the one-way 

transmission to subscribers of (i) video 

programming, or (ii) other programming 

service, and (B) subscriber interaction, if 

any, which is required for the selection 

or use of such video programming or 

other programming service.’’ The 

Commission and other authorities have 

previously concluded that the statute’s 

definition of ‘‘cable service’’ includes 

linear IP video service. 

Second, to the extent a cable operator 

uses ‘‘a set of closed transmission 

paths’’ to provide cable service, as one 

providing IP video programming over its 

copper wire (including coaxial cable) or 

fiber optic cable does, its facility meets 

Section 602(7) of the Act’s definition of 

cable system: ‘‘a facility, consisting of a 

set of closed transmission paths and 

associated signal generation, reception, 

and control equipment that is designed 

to provide cable service which includes 

video programming and which is 

provided to multiple subscribers within 

a community, but such term does not 

include (A) a facility that serves only to 

retransmit the television signals of 1 or 

more television broadcast stations; (B) a 

facility that serves subscribers without 

using any public right-of-way; (C) a 

facility of a common carrier which is 

subject, in whole or in part, to the 

provisions of subchapter II of this 

chapter, except that such facility shall 

be considered a cable system (other than 

for purposes of section 541(c) of this 

title) to the extent such facility is used 

in the transmission of video 

programming directly to subscribers, 

unless the extent of such use is solely 

to provide interactive on-demand 

services; (D) an open video system that 

complies with section 573 of this title; 

or (E) any facilities of any electric utility 

used solely for operating its electric 

utility system.’’ 

Finally, an entity that delivers cable 

services via IP is a cable operator to the 

extent it delivers those services as 

managed video services over its own 

facilities and within its footprint. This 

is compelled by the Act’s definition of 

a cable operator as a ‘‘person or group 

of persons (A) who provides cable 

service over a cable system and directly 

or through one or more affiliates owns 

a significant interest in such cable 

system, or (B) who otherwise controls or 

is responsible for, through any 

arrangement, the management and 

operation of such a cable system.’’ 

IP-based service provided by a cable 

operator over its facilities and within its 

footprint must be regulated as a cable 

service not only because it is compelled 

by the statutory definitions; it is also 

good policy, as it ensures that cable 

operators will continue to be subject to 

the pro-competitive, consumer-focused 

regulations that apply to cable even if 

they provide their services via IP. 

Congress and the Commission 

advanced several pro-competitive, 

consumer-focused values when they 

adopted the cable-specific provisions of 

the Act and the rules implementing 

these important provisions. The Act and 

our rules include many cable-specific 

requirements, including the following: 

Annual regulatory fees; Emergency Alert 

System (‘‘EAS’’) requirements; the VChip; commercial limits in children’s 

programs; network non-duplication; 

syndicated program exclusivity; notice 

to broadcasters regarding: (i) Deletion or 

repositioning of a broadcast signal, (ii) 

a change in designation of principal 

headend, (iii) change in technical 

configuration, (iv) the provision of 

service to 1,000 subscribers, thereby 

entitling broadcast stations to exercise 

non-duplication protection or 


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1 47 CFR 1.1200–1.1216. 

2See id. §§ 1.415, 1.419. 

syndicated exclusivity protection; 

political programming and candidate 

access rules; sponsorship identification; 

lotteries; public inspection file; public, 

educational, or governmental channels 

(‘‘PEG’’); program access; leased access; 

various reporting requirements; crossownership restrictions; prohibition on 

buy outs; national subscriber limits 

(horizontal ownership restriction); 

limits on carriage of vertically integrated 

programming; various franchising 

requirements; rate regulation, including 

a requirement to offer a basic service 

tier, a prohibition on negative option 

billing, an obligation to offer a tier buythrough option, and requirements 

pertaining to information on subscriber 

bills; regulation of services, facilities, 

and equipment, including minimum 

technical standards and notification to 

customers of changes in rates, 

programming services, or channel 

positions; consumer protection and 

customer service; consumer electronics 

equipment compatibility, including 

prohibition on scrambling or encrypting 

the basic service tier; support for 

unidirectional digital cable products 

(Plug and Play); protection of subscriber 

privacy; transmission of obscene 

programming; and scrambling of cable 

channels for non-subscribers. 

In particular, these obligations on 

cable operators are critical for 

noncommercial, local, and independent 

broadcasters. Sections 614 and 615 of 

the Communications Act and 

implementing rules adopted by the 

Commission entitle commercial and 

noncommercial television broadcasters 

to carriage on local cable television 

systems. When the Commission 

proposed implementing regulations, it 

noted that Congress emphasized 

strongly that the public interest 

demands that cable subscribers be able 

to access their local commercial and 

noncommercial broadcast stations. That 

congressional policy directive persists 

today; and the continued application of 

these requirements to cable operators 

that provide video programming over IP 

will ensure that local broadcasters will 

be carried, and that other cable-centric 

regulations will apply, regardless of the 

method that the cable operator uses to 

deliver the cable service. 

Cable Operators Offering OTT 

Services. We tentatively conclude that 

video programming services that a cable 

operator may offer over the Internet 

should not be regulated as cable 

services. Some cable operators have 

announced plans to offer video 

programming services via the Internet. If 

a cable operator delivers video 

programming service over the Internet, 

rather than as a managed video service 

over its own facilities, we tentatively 

conclude that this entity would be (i) a 

cable operator with respect to its 

managed video service, and (ii) a noncable MVPD under our proposed Linear 

Programming Interpretation with 

respect to its OTT service. To the extent 

a consumer located within a cable 

operator’s footprint may access the cable 

operator’s OTT service using that cable 

operator’s broadband facilities for 

Internet access, how should this 

arrangement be classified? We 

tentatively conclude that such an OTT 

service, if provided to consumers 

without regard to whether they 

subscribe to the cable operator’s 

managed video service, would be a noncable MVPD service inside and outside 

of the operator’s footprint, even if it is 

accessible over that cable operator’s 

broadband facilities. We seek comment 

on whether there is any reason that our 

tentative conclusion should change if a 

cable operator provides an OTT service 

within its footprint only, rather than 

nationally. Would our analysis change if 

the OTT service were bundled with the 

cable service? Finally, we seek comment 

on the likely forms that new OTT 

services will take, and on both the 

application of the statutory definitions 

discussed above to such services and 

the policy implications of classifying 

these services. 

DBS Providers Offering OTT Services. 

Some DBS providers offer linear OTT 

services (and have announced plans to 

expand those services) via the Internet. 

To the extent that DBS providers offer 

video programming services over the 

Internet, we tentatively conclude that 

those services should not be regulated 

as DBS service, and therefore should not 

be subject to the regulatory and 

statutory obligations and privileges of 

such services. If we adopt our proposed 

Linear Programming Interpretation, 

those services would be MVPD services 

subject to the regulatory and statutory 

obligations and privileges of such 

services. We reach this tentative 

conclusion because that service does not 

use the providers’ satellite facilities, but 

rather relies on the Internet for delivery. 

We believe that this tentative 

conclusion is consistent with the Act 

and our rules. We seek comment on this 

tentative conclusion. 

Authority. The Notice of Proposed 

Rulemaking is issued pursuant to authority 

contained in sections 4(i), 4(j), 303(r), 325, 

403, 616, 628, 629, 634 and 713 of the 

Communications Act of 1934, as amended, 

47 U.S.C. 154(i), 154(j), 303(r), 325, 403, 536, 

548, 549, 554, and 613. 

Ex Parte Rules. The proceeding 

initiated by the Notice of Proposed 

Rulemaking shall be treated as ‘‘permitbut-disclose’’ proceedings in accordance 

with the Commission’s ex parte rules.1

Persons making ex parte presentations 

must file a copy of any written 

presentation or a memorandum 

summarizing any oral presentation 

within two business days after the 

presentation (unless a different deadline 

applicable to the Sunshine period 

applies). Persons making oral ex parte 

presentations are reminded that 

memoranda summarizing the 

presentation must: (1) List all persons 

attending or otherwise participating in 

the meeting at which the ex parte 

presentation was made; and (2) 

summarize all data presented and 

arguments made during the 

presentation. If the presentation 

consisted in whole or in part of the 

presentation of data or arguments 

already reflected in the presenter’s 

written comments, memoranda, or other 

filings in the proceeding, the presenter 

may provide citations to such data or 

arguments in his or her prior comments, 

memoranda, or other filings (specifying 

the relevant page and/or paragraph 

numbers where such data or arguments 

can be found) in lieu of summarizing 

them in the memorandum. Documents 

shown or given to Commission staff 

during ex parte meetings are deemed to 

be written ex parte presentations and 

must be filed consistent with rule 

1.1206(b). In proceedings governed by 

rule 1.49(f) or for which the 

Commission has made available a 

method of electronic filing, written ex 

parte presentations and memoranda 

summarizing oral ex parte 

presentations, and all attachments 

thereto, must be filed through the 

electronic comment filing system 

available for that proceeding, and must 

be filed in their native format (e.g., .doc, 

.xml, .ppt, searchable .pdf). Participants 

in this proceeding should familiarize 

themselves with the Commission’s ex 

parte rules. 

Filing Requirements. Pursuant to 

§§ 1.415 and 1.419 of the Commission’s 

rules,2 interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using the Commission’s 

Electronic Comment Filing System 

(‘‘ECFS’’). Electronic Filers: Comments 

may be filed electronically using the 

Internet by accessing the ECFS: http:// 

fjallfoss.fcc.gov/ecfs2/. Paper Filers: 

Parties who choose to file by paper must 

file an original and one copy of each 

filing. If more than one docket or 


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2090 Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 

rulemaking number appears in the 

caption of this proceeding, filers must 

submit two additional copies for each 

additional docket or rulemaking 

number. Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. All hand-delivered or 

messenger-delivered paper filings for 

the Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St. SW., Room TW–A325, 

Washington, DC 20554. The filing hours 

are 8:00 a.m. to 7:00 p.m. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes and boxes must be disposed 

of before entering the building. 

Commercial overnight mail (other than 

U.S. Postal Service Express Mail and 

Priority Mail) must be sent to 9300 East 

Hampton Drive, Capitol Heights, MD 

20743. U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street SW., 

Washington, DC 20554. 

Availability of Documents. Comments 

and reply comments will be available 

for public inspection during regular 

business hours in the FCC Reference 

Center, Federal Communications 

Commission, 445 12th Street SW., CY– 

A257, Washington, DC 20554. These 

documents will also be available via 

ECFS. Documents will be available 

electronically in ASCII, Microsoft Word, 

and/or Adobe Acrobat. 

People with Disabilities. To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an email to fcc504@fcc.gov or call 

the FCC’s Consumer and Governmental 

Affairs Bureau at (202) 418–0530 

(voice), (202) 418–0432 (TTY). 

Regulatory Flexibility Analysis. As 

required by the Regulatory Flexibility 

Act of 1980, see 5 U.S.C. 604, the 

Commission has prepared an Initial 

Regulatory Flexibility Analysis (IRFA) 

of the possible significant economic 

impact on small entities of the policies 

and rules addressed in this document. 

The IRFA is set forth in Appendix B. 

Written public comments are requested 

in the IRFA. These comments must be 

filed in accordance with the same filing 

deadlines as comments filed in response 

to this Notice of Proposed Rulemaking 

as set forth on the first page of this 

document, and have a separate and 

distinct heading designating them as 

responses to the IRFA. 

Initial Paperwork Reduction Act 

Analysis. This Notice of Proposed 

Rulemaking seeks comment on a 

potential new or revised information 

collection requirement. If the 

Commission adopts any new or revised 

information collection requirement, the 

Commission will publish a separate 

notice in the Federal Register inviting 

the public to comment on the 

requirement, as required by the 

Paperwork Reduction Act of 1995, 

Public Law 104–13 (44 U.S.C. 3501– 

3520). In addition, pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, 44 U.S.C. 

3506(c)(4), the Commission seeks 

specific comment on how it might 

‘‘further reduce the information 

collection burden for small business 

concerns with fewer than 25 

employees.’’ 

III. Ordering Clauses 

Accordingly, it is ordered, pursuant to 

the authority contained in sections 4(i), 

4(j), 303(r), 325, 403, 616, 628, 629, 634 

and 713 of the Communications Act of 

1934, as amended, 47 U.S.C. 154(i), 

154(j), 303(r), 325, 403, 536, 548, 549, 

554, and 613, that the Notice of 

Proposed Rulemaking is adopted. 

It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, SHALL SEND a 

copy of the Notice of Proposed 

Rulemaking including the Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects in 47 CFR Part 76 

Administrative practice and 

procedure, Cable television, Equal 

employment opportunity, Political 

candidates, Reporting and 

recordkeeping requirements. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 76 as follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

■ 1. The authority citation for part 76 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 302, 302a, 303, 303a, 307, 308, 309, 312, 

315, 317, 325, 339, 340, 341, 503, 521, 522, 

531, 532, 534, 535, 536, 537, 543, 544, 544a, 

545, 548, 549, 552, 554, 556, 558, 560, 561, 

571, 572, 573. 

■ 2. Section 76.5 is amended by revising 

paragraphs (rr) and (ss) to read as 

follows: 

§ 76.5 Definitions. 

* * * * * 

(rr) Linear Video. A stream of video 

programming that is prescheduled by 

the programmer. 

(ss) Multichannel Video Programming 

Distributor. A person such as, but not 

limited to, a cable operator, a 

multichannel multipoint distribution 

service, a direct broadcast satellite 

service, or a television receive-only 

satellite program distributor, who makes 

available for purchase, by subscribers or 

customers, multiple channels of video 

programming. As used in this 

paragraph, channel means linear video 

without regard to the means by which 

the programming is distributed. 

§ 76.64 [Amended]. 

■ 3. Section 76.64 is amended by 

removing and reserving paragraph (d). 

■ 4. Section 76.71 is amended by 

revising paragraph (a) to read as follows: 

§ 76.71 Scope of application. 

(a) The provisions of this subpart 

shall apply to any corporation, 

partnership, association, joint-stock 

company, or trust engaged primarily in 

the management or operation of any 

cable system. Cable entities subject to 

these provisions include those systems 

defined in § 76.5(a), all satellite master 

antenna television systems serving 50 or 

more subscribers, and any multichannel 

video programming distributor. 

Multichannel video programming 

distributors do not include any entity 

which lacks control over the video 

programming distributed. For purposes 

of this subpart, an entity has control 

over the video programming it 

distributes, if it selects video 

programming channels or programs and 

determines how they are presented for 

sale to consumers. Notwithstanding the 

foregoing, the regulations in this subpart 

are not applicable to the owners or 

originators (of programs or channels of 

programming) that distribute six or 

fewer channels of commonly-owned 

video programming over a leased 

transport facility. For purposes of this 

subpart, programming services are 

‘‘commonly-owned’’ if the same entity 

holds a majority of the stock (or is a 

general partner) of each program 

service. 

* * * * * 

§ 76.905 [Amended]. 

■ 5. Section 76.905 is amended by 

removing and reserving paragraph (d). 

■ 6. Section 76.1000 is amended by 

revising paragraph (e) to read as follows: 

§ 76.1000 Definitions. 

* * * * * 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / Proposed Rules 2091 

(e) Multichannel video programming 

distributor. The term ‘‘multichannel 

video programming distributor’’ means 

an entity that falls under the definition 

provided in § 76.5(rr) as well as buying 

groups or agents of all such entities. 

Note to paragraph (e): A video 

programming provider that provides more 

than one channel of video programming on 

an open video system is a multichannel 

video programming distributor for purposes 

of this subpart O and § 76.1507. 

* * * * * 

§ 76.1200 [Amended]. 

■ 7. Section 76.1200 is amended by 

removing and reserving paragraph (b). 

■ 8. Section 76.1300 is amended by 

revising paragraph (d) to read as 

follows: 

§ 76.1300 Definitions. 

* * * * * 

(d) Multichannel video programming 

distributor. The term ‘‘multichannel 

video programming distributor’’ means 

an entity that falls under the definition 

provided in § 76.5(rr) as well as buying 

groups or agents of all such entities. 

* * * * * 

[FR Doc. 2014–30777 Filed 1–14–15; 8:45 am] 

BILLING CODE 6712–01–P 


rljohnson on DSK3VPTVN1PROD with PROPOSALS