Charles
B. Goldfarb
Specialist in Telecommunications Policy
Kathleen Ann Ruane
Legislative Attorney
Digital
and Internet protocol technologies have spawned a number of online video
distributors (OVDs) whose “over-the-top” video services are in some ways
akin to, and in some ways different from, traditional cable and satellite
video programming distribution services. However, most of the statutory
and regulatory framework for video predates the commercial Internet and was
developed within a policy debate that could not consider digital technology and
online services. As a result, many statutory provisions apply only to
cable companies or satellite carriers, or only to “multichannel video
programming distributors” (MVPDs)—a category that includes cable and
satellite operators, but as currently interpreted by the Federal Communications Commission
excludes online video distributors.
Congress has begun to consider this issue. At both the June 27, 2012, House
Energy and Commerce Subcommittee on Communications and Technology hearing
on “The Future of Video” and the July 24, 2012, Senate Commerce, Science,
and Transportation Committee hearing on “The Cable Act at 20,” questions
were posed about which of the existing statutory provisions and regulatory
rules, if any, should be applied to the new service providers, which provisions
and rules should be modified in light of the new technologies and new
market realities, and even whether changed circumstances are so great that
major statutory reform is needed. Identical bills introduced in the 112th Congress,
H.R. 3675 and S. 2008, would, among other things, make major changes to
the statutory framework for video.
Statutory provisions and regulatory rules affecting media and communications
typically are shaped by negotiations among the many stakeholders present
at the time the statutes and regulations are being developed. The
resulting framework creates obligations, prohibitions, privileges, and
even rights for the various stakeholders. The industry players construct
business models based on these. But statutes and regulations that are
tailored to existing technologies may create impediments to the deployment
of new technologies, especially if they create privileges or rights that
are technology-specific.
Some observers have raised concerns that the current statutory and regulatory
framework no longer fosters the long-standing U.S. media policy goals of
competition, diversity of voices, localism, and innovation because it does
not extend to online video distributors the privileges and rights—and also
the obligations and prohibitions—that are applicable to traditional video distributors.
For example, competition and innovation may be harmed if online video
distributors are denied the access to programming that MVPDs enjoy through
the program access and retransmission consent rules or if they are denied
the guaranteed low cost compulsory copyright license that cable companies
and satellite carriers enjoy. At the same time, localism may be harmed if
online video distributors that rebroadcast broadcast television signals are not
required to carry their subscribers’ local broadcast stations and are not
required to black out distant broadcast signals that duplicate the network
and syndicated programming on local stations.
Date of Report: September 11, 2012
Number of Pages: 31
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