DirecTV Seeks Definition of MVPD in FCC’s AllVid Proceeding

In a move that could delay the FCC’s inquiry about pay-TV set-top box rules, DirecTV asked the commission to clearly define what kinds of operations would be covered by the new rules.

The definition of a multichannel video programming distributor (MVPD) has come up in two FCC program access complaints, both cited in the commission’s order approving the Comcast-NBC Universal transaction, and the time is ripe for the commission to give clear guidance on the issue, industry lawyers said. “DirecTV raised important questions that the Commission should be considering and the industry deserves to have reasonable guidance, which the commission has not been offering,” said Charles Naftalin, a Holland Knight lawyer who represents Sky Angel, a party in one of the cited complaints.

The FCC should sort out the definition before proceeding with the AllVid rulemaking, so companies know whether they're affected by the rules, DirecTV said in its letter. “It would be unfair and legally problematic to impose such requirements on parties that did know even know they might fall within the ambit of the rules, and thus had no input into their formulation,” the letter said. “The Commission must resolve the threshold question of who qualifies as an MVPD before it considers the merits of a regime that could have a dramatic effect on the nature of MVPD services for years to come."

The FCC has authority to clear up the definition and could do that in acting on the Sky Angel complaint, Naftalin said. But the commission doesn’t seem close to ruling on that or a similar complaint, a communications lawyer said. “It’s also fair to say that it’s a little bit broader than the specifics that are presented in those two cases,” the lawyer said. “It could probably be more appropriately handled in a rulemaking, or in a supplemental request for comments” in the AllVid proceeding.

The matter is complicated because of the interplay between FCC pay-TV rules and copyright law, said Matthew Wood, associate director of the Media Access Project. “It’s not just the FCC’s game,” he said. “There are copyright statutes, and the Copyright Office’s rules implementing those statutes.” Further muddying the waters is that some of the Copyright Office rules refer to FCC regulations since repealed, he said.

There could be some benefits to expanding the definition of an MVPD, but providers of over-the-top video devices such as Roku or Google TV MVPDs are “pretty clearly distinguishable cases from something like Sky Angel,” Wood said. “It’s a good thing to be examining this question and thinking about broadening the definition, but that doesn’t mean it should apply to each and every vendor or company that does something in the chain that people use to watch video on their TVs.”