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ACA: Separate Regulatory Status For OVDs Consistent With FCC Precedent

The American Cable Association told the Federal Communications Commission's Media Bureau that continuing to refrain from classifying pure-play online video distributors (OVDs) as Multichannel Video Programming Distributors (MVPDs) is in accord with the intent, language and structure of the law and with longstanding Congressional and agency precedent that carefully separated the burgeoning online world from traditional forms of media regulation applied to facilities-based operators.

"Giving OVDs the same regulatory status as cable operators under the law would be an unreasonable interpretation of the law," ACA President and CEO Matthew M. Polka said. "Far reaching and disruptive consequences would result from imposing MVPD status on OVDs, because regulatory requirements crafted with wholly different business models and network configurations would apply by their terms to OVDs."

ACA presented its views in comments filed on May 15 with the FCC, in response to a public notice released by the agency's Media Bureau seeking input on the many legal, regulatory and practical consequences of reinterpreting the definition of MVPD to include OVDs such as Netflix, Hulu and YouTube, which provide TV shows, movies and user-generated videos accessed by consumers over broadband pipes that are neither owned nor controlled by the OVD.

ACA explained that the best interpretation of the term MVPD was provided by the Media Bureau itself - namely, that an MVPD is an entity that makes available to subscribers a transmission path over which it provides multiple channels of video programming. ACA stood by its view that an OVD that offers "video programming" and nothing else is not an MVPD because it isn't using its own transmission path and isn't offering a physical "channel" as that term is defined in the law and in FCC regulations.

FCC precedent, ACA added, has consistently distinguished between Internet content, applications and services and MVPD services, and the FCC has refrained from imposing regulations designed to apply to video programming and to MVPDs to video programming distributed over the Internet. Recently, the distinction between traditional and online video programming distribution was maintained by the FCC in its order approving the license transfers associated with Comcast Corp.'s acquisition of NBC Universal.

To the extent the FCC believes OVDs are MVPDs, ACA urged the agency to conduct an industrywide rulemaking, which will give all stakeholders an opportunity to assess the impact of the FCC's choice to disturb the regulatory status quo.

"If after conducting such an industrywide rulemaking the FCC concludes that inclusion of OVDs under the ambit of the term ‘MVPD' is unsupported by the law and legislative history, then the matter properly becomes one for decision by Congress," Polka said.

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