Cable operators have asked the FCC to stick with its
tentative conclusion that the definition of multichannel video provider
includes the transmission path for the "channels" delivered.
In its comments filed at the FCC Monday, the National Cable
& Telecommunications Association says that the 1992 Cable Act was clearly
intended to promote "facilities-based MVPD competitors," which would
"The Commission's decisions have consistently
recognized that the provision of a service that includes both a transmission
path and multiple channels of video content is the hallmark of an MVPD,"
"Entities that offer or package video programming for
viewing on the Internet do not generally include such a transmission path in
their service offerings to customers; that path is purchased by customers
separately from their Internet service providers. And, as a result, such
entities are not MVPDs."
The FCC call for help is related to its ongoing
consideration of a program-access complaint filed by Sky Angel, a provider of
predominantly religious pay Internet-protocol television services, against NCTA
member Discovery Communications in 2010. Discovery decided to withdraw its
programming when Sky Angel converted the service to IP delivery from direct-broadcast
satellite in 2008. However, as the FCC acknowledged, "the interpretation of
these terms has legal and policy implications that extend beyond the parties to
Sky Angel says Discovery should have to make its programming
available, while Discovery says Sky Angel is not an MVPD.
In April 2010, when the FCC denied Sky Angel's request for a
standstill order to keep Discovery from taking its programming off the service,
the Media Bureau sent something of a mixed message. It said the FCC's rules
appeared to require a transmission path for a distributor to qualify as
delivering channels of programming, and that Sky Angel - which delivers a
subscription package of linear and on-demand programming over the Internet -- had
not shown how it did that.
The FCC has yet to resolve the complaint, and earlier this
year asked for comment on whether or not it got that MVPD definition right,
given the implications of the issue.