Promoting Innovation and Competition in the Provision of Multichannel Video Programming Distribution Services, 2078-2091 [2014-30777]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 80, Number 10 (Thursday, January 15, 2015)]
[Proposed Rules]
[Pages 2078-2091]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30777]


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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.

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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 pro-competitive, 
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: https://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 (https://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 pro-competitive, consumer-focused regulations that apply to 
MVPDs as they

[[Page 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 Internet-based 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

[[Page 2080]]

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 on-demand, 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, ad-supported 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,

[[Page 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

[[Page 2082]]

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 pro-
competitive 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

[[Page 2083]]

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]acilities-
based 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

[[Page 2084]]

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 Internet-based 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 
Internet-based 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 Internet-based 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, satellite-delivered 
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, satellite-
delivered programming to any unaffiliated MVPD (the ``undue or improper 
influence'' rule); and (iii) prohibit a cable-affiliated, satellite-
delivered 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 Internet-based distributors? How will this 
impact the value of cable-affiliated programming to traditional MVPDs, 
especially as compared to non-cable-affiliated programming? To the 
extent that licensing programming to a

[[Page 2085]]

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 cable-affiliated 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 
cable-affiliated 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 Internet-based 
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 
Internet-based 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

[[Page 2086]]

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 Internet-based 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 Internet-based 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 Internet-based 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 network-affiliated 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 Sec.  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 Sec.  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 Sec.  79.1 
or Sec.  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 Internet-delivered 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, Sec.  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 Internet-based 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

[[Page 2087]]

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 Internet-based 
distributors of video programming that qualify as MVPDs. Do Internet-
based 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 Internet-based 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 non-discriminatory 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

[[Page 2088]]

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 cable-affiliated 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 Internet-
based. 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 
cable-affiliated 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 
Internet-based 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 V-Chip; 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

[[Page 2089]]

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; cross-ownership 
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 
buy-through 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 
non-cable 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 non-cable 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 ``permit-but-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.
---------------------------------------------------------------------------

    \1\ 47 CFR 1.1200-1.1216.
---------------------------------------------------------------------------

    Filing Requirements. Pursuant to Sec. Sec.  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: https://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

[[Page 2090]]

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.
---------------------------------------------------------------------------

    \2\ See id. Sec. Sec.  1.415, 1.419.
---------------------------------------------------------------------------

    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

0
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.
0
2. Section 76.5 is amended by revising paragraphs (rr) and (ss) to read 
as follows:


Sec.  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.


Sec.  76.64  [Amended].

0
3. Section 76.64 is amended by removing and reserving paragraph (d).
0
4. Section 76.71 is amended by revising paragraph (a) to read as 
follows:


Sec.  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 
Sec.  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.
* * * * *


Sec.  76.905  [Amended].

0
5. Section 76.905 is amended by removing and reserving paragraph (d).
0
6. Section 76.1000 is amended by revising paragraph (e) to read as 
follows:


Sec.  76.1000  Definitions.

* * * * *

[[Page 2091]]

    (e) Multichannel video programming distributor. The term 
``multichannel video programming distributor'' means an entity that 
falls under the definition provided in Sec.  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 Sec.  76.1507.

* * * * *


Sec.  76.1200  [Amended].

0
7. Section 76.1200 is amended by removing and reserving paragraph (b).
0
8. Section 76.1300 is amended by revising paragraph (d) to read as 
follows:


Sec.  76.1300  Definitions.

* * * * *
    (d) Multichannel video programming distributor. The term 
``multichannel video programming distributor'' means an entity that 
falls under the definition provided in Sec.  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