Online Program Access Issues Called Distinct From Comcast-NBCU Merger
Questions about what kinds of pay-TV distributors are entitled to use the FCC program access rules to seek carriage of vertically integrated-programming are better answered in a separate rulemaking, rather than in the context of a condition to approval of the Comcast-NBCU merger, Time Warner Cable argued in its reply comments in the merger review. Such a rulemaking could also answer questions about online distributors’ duties to provide closed-captioning and the emergency alert system, it said. “To the extent these issues need to be addressed, the full range of OTT [over-the-top] providers’ regulatory responsibilities should be considered in a proceeding of industry-wide scope, instead of adopting a standalone condition that would purport to give online entities rights under the program access rules,” it said.
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Plus, the FCCs Media Bureau has indicated that OTT video providers aren’t MVPDs under the law, TWC argued, citing an order by the Media Bureau denying Sky Angel’s request for a standstill period during its program access dispute with Discovery Communications (CD April 23 p9). Taking up the issues in the context of the merger would “not only distort the marketplace and undermine competition, but could prejudice the Commission’s ability to address these complex and wide ranging issues in a more comprehensive fashion,” TWC said.
No rulemaking is needed to resolve Sky Angel’s complaint because Sky Angel is an MVPD under the current definition, said Charles Naftalin, a Holland & Knight attorney representing Sky Angel. Sky Angel did not comment in the Comcast-NBCU docket. Plus, Sky Angel’s complaint is still pending and the Bureau’s interim ruling shouldn’t be read into too closely, he said. “What you had there was a preliminary, interim decision without any resolution of the actual complaint and without any decision made on Sky Angel’s rights to proceed,” he said. It’s not clear when the FCC will act on Sky Angel’s complaint, Naftalin said: “We hope it’s soon."
FCC officials seem interested in the online video questions raised by critics of the Comcast-NBCU deal, said Corie Wright, Free Press policy counsel. “It’s a debate that’s getting a lot of heat and with good reason” in the context of the merger review, she said. Free Press and others are worried that the combined Comcast-NBCU would have the ability to keep nascent competitors in online video from growing into full-fledged rivals, she said: “The issues of online video seem to be a high priority in this merger review."
But it’s not clear whether that interest carries over beyond the merger review, Wright said. “In terms of the commission’s appetite to do something more generally, I don’t know,” she said. “I do think it’s something they'll have to address in the proceeding if they haven’t put protections in place elsewhere.”