Wheeler Sitting on NPRM on Redefining MVPD in Hopes of Consensus With Republicans

A circulating draft NPRM on broadening the FCC definition of a multichannel video programming distributor to include online video distributors is being held back by the chairman’s office as part of an effort to reach consensus with the Republican commissioners, officials at the agency including on its eighth floor told us. Chairman Tom Wheeler said at Thursday’s FCC meeting that a vote on the item would happen before the week was out (see 1412110069), but the vote was delayed, the officials said. The item already has enough votes from the FCC’s Democrats to pass, said the officials.

Sticking points in the draft item focus on which over-the-top services would be defined as MVPDs, what obligations that currently apply to MVPDs would be extended to the new OTT MVPDs, and whether the items in the NPRM are presented as tentative conclusions on which the FCC is seeking comment or as open questions, said FCC officials. The latter is the same conflict that divided Wheeler and Commissioners Ajit Pai and Mike O’Rielly over the incentive auction comment public notice at Thursday’s open meeting. Wheeler said Thursday that offering “generalities” for comment is “bad process.” It should be the FCC’s job to put forth proposals in specific terms, Wheeler said.

The draft NPRM would seek comment on how linear OTT providers should be defined and differentiated, and proposes not applying to OTT providers the facilities-based rules that apply to MVPDs, industry and FCC officials have said (see 1410220044). OTT video industry officials have told us the draft asks questions about how the rules would apply to on-demand video sites that offer only one or two linear streams of programming, and how it would treat MVPD-owned OTT services. It also is said to seek comment on whether obligations such as emergency alerts and children’s programming requirements would apply to the new MVPDs. An FCC spokesman declined to comment for this story.

Wheeler has said the item would continue to apply rules for cable systems to existing cable systems, even if they transitioned to an all-IP delivery method, a provision that was supported by TiVo in a November ex parte filing in docket 12-83. Wheeler’s promise to continue to apply the rules to existing cable systems means “existing facilities-based MVPDs” can’t escape the obligations of MVPDs “simply by migrating to IP delivery,” TiVo said.

Additional regulations for OTT services shouldn’t stifle content company-owned online video services' ability to determine how their content is delivered, said CBS in meetings with O’Rielly, Pai, Commissioner Jessica Rosenworcel and Wheeler, according to a November ex parte filing. “Negotiations and agreements with third-party OTT services are occurring in the absence of any FCC action.” NAB has also expressed concern about the proposed rule change, though it named itself a supporter in a November blog post (see 1411170051). Then NAB Executive Vice President-Strategic Planning, now General Counsel Rick Kaplan said redefining MVPD is so complicated that it would likely take more time than Wheeler has left in office (see 1411130040).