README.md

How to read an FCC Notice of Proposed Rulemaking

This short guide will teach you to read an FCC NPRM with grep. The underlying assumption is that stop words can be used to find key pieces of information in a large body of text. In the case of a notice of proposed rulemaking, those key pieces of information are tentative conclusions and requests for comment.

"We" words

FCC NPRMs often use the word "we" when referring to the office or bureau responsible for the document, or sometimes even the Commission itself. With this knowledge, it's possible to find out the types of actions the FCC is taking.

$ grep -R "We" corpus.txt --no-filename
We see daily news that cable operators and satellite television providers are obtaining rights for online distribution
of content. Sam Adams and Christian Plumb, Verizon CEO says to launch Web TV product in 2015, REUTERS,
 We propose to interpret the term MVPD to mean distributors of multiple linear video
o We tentatively conclude that this interpretation is a reasonable interpretation of the
 We also seek comment on an alternative interpretation that would require a programming
o We invite comment on whether this interpretation is consistent with the Act and
 We seek comment on how each interpretation would benefit and burden entities that would
o We also ask whether we should consider exemption or waiver of certain regulations,
o We seek comment on whether to modify our retransmission consent “good faith”
 We seek comment on what impact these interpretations would have on content owners,
facilities remain subject to regulation as cable services. We seek comment on the regulatory status of
Network, NFL Network, Hallmark Channel, and Weather Channel via a set-top box that has a broadband Internet
of MVPD. We note that the Media Bureau recently changed the ex parte status of the March 2012 Public
 Subscription Linear. We use this term to refer to Internet-based distributors that make
 Subscription On-Demand. We use this term to refer to Internet-based distributors that make
 Transactional On-Demand. We use this term to refer to Internet-based distributors that make
 Ad-based Linear and On-Demand. We use this term to refer to Internet-based distributors

Quickly skim the output (the example above is truncated, but not by much) and find the verb after "We" and write it down. Here's what I found:

• tentatively conclude
• propose
• seek comment
• also seek comment
• then seek
• expect
• discuss
• invite
• realize
• note
• also note
• use
• see

It's interesting that with a simple command, we can see that there aren't any non-tentative conclusions. This makes complete sense, as the FCC should not be jumping to any non-tentative conclusions in a proposal. But it's nice to see a single line of code verify this. And to be doubly sure, run grep -R "We conclude" corpus.txt --no-filename and see that it yields no results.

One benefit to searching for phrases containing "We" is that it likely filters out dissenting or concurring statements from commissioners.

Tentative Conclusions

With the "We" words, it's easy to know what to search for. Let's start with tentative conclusions adopted by the FCC in the NPRM:

$ grep -R "We tentatively conclude" corpus.txt --no-filename --context
 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
--
--
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.78
 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
--
--
241
2. Cable Operators Offering OTT Services
78. 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

Comments Sought

$ grep -R "We seek comment" corpus.txt --no-filename --context
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
--
--
used to deliver it to them.
70
 We seek comment on this tentative conclusion.
25. 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
--
--
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.74
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.

Invitations

$ grep -R "We invite" corpus.txt --no-filename --context
We invite comment on whether this interpretation is consistent with the Act and
Congressional intent and how this interpretation would apply as companies begin to
offer subscription linear video services over the Internet.
--
--
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.
14. As explained below, we seek comment on our tentative conclusion that entities that
--
--
but not at the coffee shop. We believe that this would lead to regulatory uncertainty, thus providing more
support for the Linear Programming Interpretation. We seek comment on this analysis.
32. We invite comment on any other interpretation the Commission should consider in
addition to the Linear Programming Interpretation and the Transmission Path Interpretation.
B. Regulatory Implications of Alternative Interpretations

Notes and Expectations

$ grep -R "We note" corpus.txt --no-filename --context
We note that even if an Internet-based distributor qualifies as an MVPD it will not be subject to a number of
regulations and statutory requirements applicable to cable and DBS operators unless it also qualifies as one of those
services. See, e.g., 47 C.F.R. §§ 76.92, 76.122 (network non-duplication rules, which apply to cable operators) ; 47
--
--
119
 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?
--
--
– 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.

$ grep -R "We expect" corpus.txt --no-filename --context
 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. 178 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, 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.
62. Commercial Loudness. As required by the CALM Act,182 the Commission’s rules require

Congressional Intent

For Chevron buffs, this command will guide you to areas of high contention:

$ grep -R "Congress intended" corpus.txt --no-filename --context
“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.
--
--
58 See, e.g., DishWorld – Watch Live International TV Instantly, http://www.dishworld.com/ (last visited Oct. 22,
2014); supra n.1.
59 See AT&T Comments at 5 (“[I]nsofar as Congress intended the 1992 amendments to the Cable Act (including the
program access provisions) to promote competition from alternative providers and technologies in the video space, it
plainly did not intend to limit the term MVPD to those using a particular technology.”); Sky Angel Comments at 15-
--
--
83
 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?
30. 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.
--
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.84
 Moreover, the Commission has previously stated that

corpus.txt

Federal Communications Commission FCC 14-210
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Promoting Innovation and Competition in the
Provision of Multichannel Video Programming
Distribution Services
)
)
)
)
)
MB Docket No. 14-261
NOTICE OF PROPOSED RULEMAKING
Adopted: December 17, 2014 Released: December 19, 2014
Comment Date: [30 days after date of publication in the Federal Register]
Reply Comment Date: [45 days after date of publication in the Federal Register]
By the Commission: Chairman Wheeler and Commissioners Clyburn and Rosenworcel issuing separate
statements; Commissioners Pai and O’Rielly concurring and issuing separate
statements.
TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION.................................................................................................................................. 1
II. BACKGROUND.................................................................................................................................... 9
III. DISCUSSION ...................................................................................................................................... 13
A. Defining MVPD............................................................................................................................. 16
1. Proposed “Linear Programming Interpretation” ..................................................................... 18
2. Alternative “Transmission Path Interpretation” ...................................................................... 29
B. Regulatory Implications of Alternative Interpretations................................................................. 33
1. Application of MVPD-Specific Regulatory Privileges and Obligations to InternetBased
Distributors of Video Programming ............................................................................. 35
a. General Privileges and Obligations .................................................................................. 36
b. Specific Privileges and Obligations.................................................................................. 39
(i) Privileges.................................................................................................................... 39
(ii) Obligations................................................................................................................. 46
2. Impact on Content Owners...................................................................................................... 65
a. Broadcast Content............................................................................................................. 66
b. Cable-Affiliated Content................................................................................................... 67
c. Non-Broadcast, Non-Cable-Affiliated Content ................................................................ 70
C. Regulatory Treatment of Cable Operators and DBS Providers that Provide Linear Video
Services via IP ............................................................................................................................... 71
1. Cable Service Provided via IP Over the Operator’s Facilities ................................................ 72
2. Cable Operators Offering OTT Services................................................................................. 78
3. DBS Providers Offering OTT Services................................................................................... 79
IV. PROCEDURAL MATTERS................................................................................................................ 80
V. ORDERING CLAUSES....................................................................................................................... 88
APPENDIX A – Proposed Rules
APPENDIX B – Initial Regulatory Flexibility AnalysisFederal Communications Commission FCC 14-210
2
I. INTRODUCTION
1. In this 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 “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 Internet1
and that nascent, Internet-based video programming services2 will have access to
the tools they need to compete with established providers.
3
2. 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.
4 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.

1
 We see daily news that cable operators and satellite television providers are obtaining rights for online distribution
of content. Sam Adams and Christian Plumb, Verizon CEO says to launch Web TV product in 2015, REUTERS,
September 11, 2014, available at http://www.reuters.com/article/2014/09/11/us-verizon-comms-towersidUSKBN0H61KB20140911
(reporting that Sony, Dish Network, DIRECTV and Verizon are each developing
Internet-delivered streaming video services that are a “viable alternative to cable TV service.”); Edmund Lee, Scott
Moritz and Alex Sherman, Dish Leads in Race to Offer Online TV to Compete With Cable, BLOOMBERG, March 15,
2014, available at http://www.bloomberg.com/news/2014-03-04/dish-takes-lead-in-race-to-offer-streaming-tv-torival-cable.html
(“If Dish goes ahead with an online service, competitors could follow -- including cable companies
like Comcast and Cablevision Systems Corp., which could move out of their traditional regions to offer TV
nationwide, said Bernard Gershon, a digital media consultant in New York.”); Chris Young, Industry awaits linear
OTT experiment, SNL KAGAN, July 18, 2014, available at
http://www.snl.com/interactivex/article.aspx?id=28627040&KPLT=2; Comcast branches out cloud DVR, live
streaming service, CED MAGAZINE, May 8, 2014, available at
http://www.cedmagazine.com/news/2014/05/comcast-branches-out-cloud-dvr-live-streaming-service (“Like other
video service providers, Comcast is focused on offering live streaming out of the home.”). AT&T’s U-Verse service
is delivered via Internet Protocol (“IP”) today. See AT&T, WHAT IS IPTV? (2009), available at
https://www.att.com/Common/about_us/files/pdf/IPTV_background.pdf. In recognition of the increasing
prevalence of Internet distribution of video, the National Cable & Telecommunications Association has renamed its
annual Cable Show as INTX: the Internet and Television Expo, “in an effort to broaden the three-day gathering to
include online video providers and distributors beyond the traditional Cable Show crowd.” Kent Gibbons, NCTA:
‘Cable Show’ Convention Becoming INTX, MULTICHANNEL NEWS (Sept. 17, 2014),
http://www.multichannel.com/ncta-cable-show-convention-becoming-intx/383922.
2
For readability throughout this 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. See infra ¶ 71.
3
See Letter from Seth Greenstein, Counsel to Aereo, to Marlene H. Dortch, Secretary, Federal Communications
Commission, MB Docket No. 12-83, at 2 (filed Oct. 10, 2014) (“Particularly in the wake of adverse judicial and
agency decisions over the last several years, linear online streaming services likely cannot attract the level of
investment necessary to create meaningful competition to incumbent business models without a clear path of
regulatory certainty.”).
4
See supra n.1. See also Brian Santo and Mike Robuck, DOCSIS 3.1 takes center stage at Cable-Tec Expo, CED
MAGAZINE, (Nov. 21, 2012, 9:56 AM), http://www.cedmagazine.com/articles/2012/11/docsis-31-takes-center-stageat-cable-tec-expo.Federal
Communications Commission FCC 14-210
3
3. 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 this 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.
4. 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.5
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.
6
5. 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.”7
 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.”8

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.
6. In this 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. In Section III.A, 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.

5
See supra n.1.
6
See Technology Transitions; AT&T Petition to Launch a Proceeding Concerning the TDM-to-IP Transition;
Connect America Fund; Structure and Practices of the Video Relay Service Program; Telecommunications Relay
Services And Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; Numbering Policies
for Modern Communications, 29 FCC Rcd 1433, 1446, ¶ 37 (2014) (“we seek both to advance new network
technologies and learn how best to protect and enhance the core statutory values of public safety, universal access,
competition, and consumer protection.”); Closed Captioning of Internet Protocol-Delivered Video Programming:
Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, 27 FCC Rcd 787,
791-2, ¶ 5 (2012) (recounting the evolution of video distribution methods).
7 Revision of the Commission’s Program Access Rules, Report and Order and Further Notice of Proposed
Rulemaking, 27 FCC Rcd 12605, 12608, ¶ 3 (2012).
8
S. Rep. No. 92, 102nd Cong., 1st Sess. (1991), reprinted in 1992 U.S.C.C.A.N. 1133, 1169.Federal Communications Commission FCC 14-210
4
o We 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.
o We invite comment on whether this interpretation is consistent with the Act and
Congressional intent and how this interpretation would apply as companies begin to
offer subscription linear video services over the Internet.
7. In Section III.B, we 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.
o We also ask whether we should consider exemption or waiver of certain regulations,
if allowed under the statute.
o 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.
8. In Section III.C, we 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.
II. BACKGROUND
9. 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.9

The Act also defines the terms “channel” and “video programming,” which are used in the MVPD
definition. A “channel” is defined 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

9
47 U.S.C. § 522(13); see also 47 C.F.R. §§ 76.64(d), 76.71(a), 76.905(d), 76.1000(e), 76.1200(b), 76.1300(d). Federal Communications Commission FCC 14-210
5
by the Commission by regulation).”10
 The Act defines “video programming” as “programming provided
by, or generally considered comparable to programming provided by, a television broadcast station.”11
10. 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 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.12
 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.13
 Based on the
limited record at the time, the Bureau was unable to find that Sky Angel provides its subscribers with a
transmission path.14
 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,15 and the court denied the Petition
“without prejudice to renewal in the event of significant delay.”16
 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.17
 In June 2014, Sky Angel notified the

10 47 U.S.C. § 522(4). The Commission’s regulations define a “television channel” as “a band of frequencies 6 MHz
wide in the television broadcast band and designated either by number or by the extreme lower and upper
frequencies.” 47 C.F.R. § 73.681; see also 47 C.F.R. §§ 73.603, 73.606, 73.682(a)(1). The Commission’s
regulations also define a “cable television channel” as a “signaling path provided by a cable television system.” 47
C.F.R. § 76.5(r)-(u).
11 47 U.S.C. § 522(20).
12 See Sky Angel U.S., LLC, Order, 25 FCC Rcd 3879, 3882-83, ¶ 7 (MB, 2010) (“Sky Angel Standstill Denial”).
The procedural background of this case is complex: In March 2010, Sky Angel filed a program access complaint
against Discovery Communications, LLC and its affiliate, Animal Planet, L.L.C. (collectively, “Discovery”), as well
as a petition for a standstill extending rights it had under its affiliation agreement with Discovery. See Sky Angel
Program Access Complaint; Sky Angel U.S., LLC, Emergency Petition for Temporary Standstill, MB Docket No.
12-80, File No. CSR-8605-P (March 24, 2010). When Sky Angel filed its complaint, it provided a national
subscription-based service of approximately eighty channels of video and audio programming including MLB
Network, NFL Network, Hallmark Channel, and Weather Channel via a set-top box that has a broadband Internet
input and video outputs that connect directly to a television set. See Sky Angel Complaint at 1-9. Sky Angel filed
its complaint and standstill request with the Commission after receiving notice that Discovery intended to terminate
its affiliation agreement with Sky Angel covering certain Discovery networks. The Media Bureau denied the
standstill request on the basis that Sky Angel failed 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. Sky Angel Standstill
Denial, 25 FCC Rcd at 3882-83, ¶ 7. Sky Angel subsequently filed a renewed petition for standstill. See Sky Angel
U.S., LLC, Renewed Petition for Temporary Standstill, MB Docket No. 12-80 (May 27, 2011).
13 See Sky Angel Standstill Denial, 25 FCC Rcd at 3882-83, ¶ 7.
14 See id.
15 See Sky Angel U.S., LLC, Petition for Writ of Mandamus, Case No. 12-1119 (filed Feb. 27, 2012).
16 Sky Angel U.S., LLC, Order, Case No. 12-1119 (D.C. Cir. 2012).
17 See Media Bureau Seeks Comment on Interpretation of the Terms “Multichannel Video Programming
Distributor” and “Channel” as Raised in Pending Program Access Complaint Proceeding, MB Docket No. 12-83,
Public Notice, 27 FCC Rcd 3079 (MB 2012) (“March 2012 Public Notice”). Federal Communications Commission FCC 14-210
6
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.”18

11. 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.19
 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,”20 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.
21
 On November 21, 2014, Aereo filed to
reorganize under Chapter 11 of the U.S. Bankruptcy Code.22
12. Comments filed in response to the March 2012 Public Notice reveal a wide range of
views.23
 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.
24 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.
III. DISCUSSION
13. As discussed below, we tentatively conclude that the statutory definition of MVPD
includes certain Internet-based distributors of video programming.
25
 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,

18 Supplemental Comments of Sky Angel U.S., LLC, MB Docket No. 12-80, File No. CSR-8605-P, at 1 (June 10,
2014).
19 American Broadcasting Companies, Inc. v. Aereo, Inc., 134 S.Ct. 2498 (2014).
20 Letter from Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, U.S. Copyright
Office, to Matthew Calabro, Director of Financial Planning & Analysis and Revenue, Aereo, Inc. (July 16, 2014).
The letter rejected Aereo’s argument that it is a cable operator under the Copyright Act but indicated that the
Copyright Office might revisit that conclusion if the Commission should find Aereo to be an MVPD under the
Communications Act. On October 23, 2014, the Federal District Court for the Southern District of New York
granted certain broadcast stations’ request for a preliminary injunction to stop Aereo’s live and near-live streaming
of their broadcast signals over the Internet. The court appeared to leave open the possibility that Aereo could be
entitled to a statutory copyright license if the Copyright Office and this Commission changed our interpretations of
our respective statutes. See American Broadcasting Companies, Inc. et al. v. Aereo, Inc., Nos. 12–cv–1540, 12–cv–
1543, 2014 WL 5393867, at *5, n.3 (SDNY Oct. 23, 2014).
21 Eriq Gardner, Appeals Court Denies Aereo’s Request for New Hearing, THE HOLLYWOOD REPORTER (Aug. 22,
2014, 6:38 AM), http://www.hollywoodreporter.com/thr-esq/appeals-court-denies-aereos-request-727009.
22 See Chet Kanojia, The Next Chapter, AEREO BLOG (Nov. 21, 2014), http://blog.aereo.com/2014/11/next-chapter/.
23 Unless otherwise noted, all comments and reply comments discussed and cited herein were filed on May 14, 2012
and June 13, 2012, respectively, in MB Docket No. 12-83.
24 See “Permit But Disclose” Ex Parte Procedures Established for Docket Seeking Comment on Interpretation of
the Terms “Multichannel Video Programming Distributor” and “Channel” as Raised in Pending Program Access
Complaint Proceeding, Public Notice, DA 14-1214 (MB rel. September 30, 2014).
25 See supra n.2.Federal Communications Commission FCC 14-210
7
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, linear26 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-demand27 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.28

 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.
29
 This category includes
Amazon Instant Video, CinemaNow (Best Buy), Google Play, iTunes Store (Apple), Sony
Entertainment Network, Vudu (Walmart), and Xbox Video (Microsoft).
30
 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.

26 In this NPRM, we use the terms linear and pre-scheduled interchangeably, consistent with prior Commission use.
See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Notice of
Inquiry, 29 FCC Rcd 1597, 1603, ¶ 15, n.23 (2014) (“A linear channel is one that distributes programming at a
scheduled time. Non-linear programming, such as video-on-demand (‘VOD’) and online video content, is available
at a time of the viewer’s choosing.”); Implementation of Section 304 of the Telecommunications Act of 1996, Fourth
Further Notice of Proposed Rulemaking, 25 FCC Rcd 4303, 4308, ¶ 14 n.43 (2010) (“The term ‘linear
programming’ is generally understood to refer to video programming that is prescheduled by the programming
provider. Cf. 47 U.S.C. § 522(12) (defining ‘interactive on-demand services’ to exclude ‘services providing video
programming prescheduled by the programming provider’).”).
27 We use the term “on-demand” to refer to programming that is not prescheduled by the programming provider.
See 47 U.S.C. § 522(12) (defining “interactive on-demand service” as “a service providing video programming to
subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing
video programming prescheduled by the programming provider.” (emphasis added)).
28 See Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, Fourteenth
Report, 27 FCC Rcd 8610, 8722, ¶ 246, 8725, ¶ 252, 8726, ¶ 254 (2012) (“14th Annual Report”).
29 “Electronic sell through” (“EST”) services are a subset of “on demand” services that make content available to
consumers on a download-to-own basis. See Anytime On Demand, Media Centre: Glossary of Terms,
http://www.anytimeondemand.com/glossary_of_terms.html#electronic; Project Concord, Inc. v. NBCUniversal
Media, LLC, Order on Review, DA 12-1958 (Nov. 13, 2012), at ¶ 12 n.55. We use the term Transactional OnDemand
to refer to both rental and download-to-own services.
30 See 14th Annual Report, 27 FCC Rcd at 8724, ¶ 249, 8725-26, ¶¶ 253-54, 8727, ¶¶ 256-57.Federal Communications Commission FCC 14-210
8
 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.
14. 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,31 we believe they fall outside the statutory
definition.32
 We seek comment on this view.
15. Below, we begin by seeking comment on our proposed interpretation of the definition of
the term MVPD and on alternative interpretations.
33
 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.
A. Defining MVPD
16. To qualify as an MVPD under the Communications Act, an entity must “make[] available
for purchase, by subscribers or customers, multiple channels of video programming.”34
 The Commission
has previously held that video distributed over the Internet qualifies as “video programming.”35
 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.
17. 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).”36
 As discussed in the Media Bureau’s March 2012

31 See 47 U.S.C. § 522(20) (defining “video programming”).
32 47 U.S.C. § 522(13); see 14th Annual Report, 27 FCC Rcd at 8722, ¶ 246, 8723, ¶ 248.
33 This NPRM does not define or opine on which services or providers are in the same relevant product market as a
service designated as an MVPD.
34 47 U.S.C. § 522(13).
35 The Act defines “video programming” as “programming provided by, or generally considered comparable to
programming provided by, a television broadcast station.” 47 U.S.C. § 522(20). Although the Commission stated a
decade ago that “Internet video, called ‘streaming video’ . . . has not yet achieved television quality . . . and
therefore is not consistent with the definition of video programming,” it recently reached the opposite conclusion in
light of technological developments. Compare Inquiry Concerning High-Speed Access to the Internet Over Cable
and Other Facilities, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798, 4834, ¶ 63 n.236
(2002) with Preserving the Open Internet, Report and Order, 25 FCC Rcd 17905, 17976, ¶ 129 n.408 (2010),
vacated on other grounds, Verizon v. FCC, 740 F.3d 623 (DC Cir 2014) (“intervening improvements in streaming
technology and broadband availability enable such programming to be ‘comparable to programming provided by . . .
a television broadcast station’”) (quoting definition of “video programming” in 47 U.S.C. § 522(20)).
36 47 U.S.C. § 522(4). Federal Communications Commission FCC 14-210
9
Public Notice and in further detail below, there are at least two possible interpretations of the term
“channel” within the definition of MVPD.37
 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.38
 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”).39
 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.40 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.
1. Proposed “Linear Programming Interpretation”
18. 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.
41
 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.”42
19. 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

37 See March 2012 Public Notice, 27 FCC Rcd at 3079, ¶ 1.
38 See id..
39 In denying Sky Angel’s standstill request, the Media Bureau expressed tentative approval of the Transmission
Path Interpretation. See Sky Angel Standstill Denial, 25 FCC Rcd at 3882-83, ¶ 7. In doing so, the Media Bureau
cautioned that its action “should not be read to state or imply that the Commission, or the Bureau acting on
delegated authority, will ultimately conclude, in resolving the underlying complaint, that Sky Angel does not meet
the definition of an MVPD.” Id. at 3884, ¶ 10. We also note that staff-level decisions are not binding on the
Commission. See Comcast Corp. v. FCC, 526 F.3d 763, 769 (D.C. Cir. 2008).
40 See Sky Angel Comments at 19-20; Comments of Syncbak, Inc. at 3 (“Syncbak Comments”) (calling for a
“functional equivalency” standard); see also Reply Comments of M3X Media, Inc. at 3-4 (“M3X Reply
Comments”); Reply Comments of Syncbak, Inc. at 6 (“Syncbak Reply Comments”) (suggesting that the
Commission should allow entities to choose whether to have MVPD status); see also infra ¶¶ 33-64 (discussing the
regulatory privileges and obligations of MVPD status).
41 See Appendix A (proposing new rule section 76.5(ss)).
42 See Appendix A (proposing new rule section 76.5(rr)). The Commission has used the word “linear” to refer
generally to prescheduled video programming. See supra n.26. Federal Communications Commission FCC 14-210
10
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 . . .
.”43
 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.44

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.45
 Therefore, we believe that our
interpretation is consistent with the illustrative list of MVPDs that the statutory definition provides.
20. 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.46

Rather, an MVPD may use a third party’s distribution facilities in order to make video programming
available to subscribers.47
 We find, therefore, that our proposed interpretation is consistent with
Commission precedent. We seek comment on this finding.
21. 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,48 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

43 47 U.S.C. § 522(13) (emphasis added).
44 Sky Angel Standstill Denial, 25 FCC Rcd at 3883, n.41; see also ACA Comments at 7-8; Cablevision Comments
at 9; Discovery Comments at 4.
45 See Comments of Public Knowledge at 8-9 (“Public Knowledge Comments”); see also ABC/CBS/NBC Affiliates
Reply Comments at 4 (“The statute contains no express limitation predicated on the technological method by which
video programming is delivered to subscribers or customers . . . .”) (emphasis in original). Consistent with this
interpretation, DIRECTV and SkyAngel note that one of the statutory examples – “a television receive-only satellite
program distributor” – does not provide or control the transmission path used to provide video programming to
subscribers or customers, thereby supporting our tentative conclusion. See DIRECTV Comments at 8-10; Sky Angel
Comments at 16-17; see also Implementation of Sections of the Cable Television Consumer Protection and
Competition Act of 1992: Rate Regulation, Report and Order and Further Notice of Proposed Rulemaking, 8 FCC
Rcd 5631, 5651-52, ¶ 23 (1993) (“TCI asserts that, by including television receive-only satellite programming
distributors in the definition of a multichannel video programming distributor, Congress showed that a distributor
need not be facilities-based in order to come within the scope of the effective competition test. We agree with TCI
that a qualifying distributor need not own its own basic transmission and distribution facilities.”) (“1993 Rate
Regulation Order”); ABC/CBS/NBC Affiliates Reply Comments at 7-9; DIRECTV Reply Comments at 3-5; Sky
Angel Reply Comments at 15-16. Other commenters dispute DIRECTV and Sky Angel’s assertion that receive-only
satellite programming distributors are not facilities based. See Cablevision Comments at 8; Comcast/NBCU Reply
Comments at 5-6; NCTA Reply Comments at 4-5.
46 See Implementation of Section 302 of the Telecommunications Act of 1996, Third Report and Order and Second
Order on Reconsideration, 11 FCC Rcd 20227, 20301, ¶ 171 (1996) (“[W]e find Rainbow’s argument that video
programming providers cannot qualify as MVPDs because they may not operate the vehicle for distribution to be
unsupported by the plain language of Section 602(13), which imposes no such requirement.”) (“OVS Second Order
on Recon”); see also1993 Rate Regulation Order, 8 FCC Rcd at 5651-52, ¶ 23.
47 The Commission noted that the effective competition test in Section 623 of the Act suggests that an MVPD can
use another entity’s facilities (e.g., that of a local exchange carrier or its affiliate) to provide video programming.
See OVS Second Order on Recon, 11 FCC Rcd at 20301, ¶ 171; see also 47 U.S.C. § 543(l)(1)(D) (referring to video
programming provided by “a local exchange carrier or its affiliate (or any multichannel video programming
distributor using the facilities of such carrier or its affiliate)”).
48 47 U.S.C. § 522(4).Federal Communications Commission FCC 14-210
11
television channel (as television channel is defined by the Commission by regulation).49
 This definition
was adopted in the 1984 Cable Act, which focused primarily on the regulation of cable television.50
 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.
51
 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.
52

22. 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.
53

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.
54
 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
interpretation of the Act. We seek comment on this position.
23. 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

49 47 U.S.C. § 522(4) (emphasis added).
50 See Cable Communications Policy Act of 1984, Pub. L. No. 98-549, § 2, 98 Stat. 2779 (“1984 Cable Act”); see
also H.R. Rep. No. 98-934 (1984), at 19, reprinted in 1984 U.S.C.C.A.N. 4655, 4656 (stating that the bill
“establishes a national policy that clarifies the current system of local, state and federal regulation of cable
television”).
51 See Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, § 2, 106 Stat.
1460 (1992) (adding Section 602(13) to the Act); see also 47 U.S.C. § 522(13) (defining 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 . . .”) (emphasis added).
52 See Comments of DIRECTV, LLC at 5 (“There is simply no way that the cable-centric definition of ‘channel’ can
be squared with the list of non-cable providers listed in the definition of ‘MVPD.’”) (“DIRECTV Comments”); see
also ABC/CBS/NBC Affiliates Comments at 7-8; AT&T Comments at 5; Comments of Sky Angel U.S., LLC at 20-
23 (“Sky Angel Comments”).
53 See ABC/CBS/NBC Affiliates Comments at 7; DIRECTV Comments at 5; Sky Angel Comments at 22. We also
note Section 336 of the Act, which addresses ancillary broadcast services. 47 U.S.C. § 336. Under that section, the
Commission is prohibited from deeming a broadcaster that offers multiple linear streams of video programming for
a fee to be an MVPD. 47 U.S.C. § 336(b)(3). This statutory provision would not have been necessary if Congress
intended “channel” to mean “a portion of the electromagnetic frequency spectrum . . . which is capable of delivering
a television channel” because a broadcast station cannot provide multiple portions of the electromagnetic frequency
spectrum that are capable of delivering a television channel. Compare 47 U.S.C. § 336(b)(3) with 47 U.S.C. §
602(4) (defining “channel”). Section 336(b)(3) makes sense only if we read “channel” in the definition of
multichannel video programming distributor to mean linear stream of video programming.
54 Compare 47 U.S.C. § 522(7) (defining a “cable system” as a “facility, consisting of a set of closed transmission
paths”) with 47 U.S.C. § 522(13) (not referring to “transmission paths” in the definition of “multichannel video
programming distributor”). Federal Communications Commission FCC 14-210
12
technologies such as Internet delivery.55
 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.56
 It would frustrate those goals to
exclude from coverage new technologies and services that develop. Consumers are watching more online
subscription video,57 and incumbent operators and new entrants alike are experimenting with or planning
to launch linear video services over the Internet.58
 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.59
 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

55 See ABC/CBS/NBC Affiliates Comments at 4-5 (“It is well settled, and has been recognized repeatedly and in a
variety of contexts, that statutory language is not frozen in time as of its enactment but can and should, consistent
with legislative purpose, take account of technological developments.”) (citing United States v. Southwestern Cable
Co., 392 U.S. 157, 172 (1968)). We note that the Commission previously characterized the definition of “MVPD”
as “broad in its coverage.” See Implementation of the Cable Television Consumer Protection and Competition Act
of 1992; Broadcast Signal Carriage Issues, Notice of Proposed Rulemaking, 7 FCC Rcd 8055, 8065, ¶ 42 (1992);
Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of 1992;
Development of Competition and Diversity in Video Programming Distribution and Carriage, Notice of Proposed
Rulemaking, 8 FCC Rcd 194, 195, ¶ 6 n.13 (1992).
56 See 47 U.S.C. § 548(a) (“The purpose of this section is to promote the public interest, convenience, and necessity
by increasing competition and diversity in the multichannel video programming market, to increase the availability
of satellite cable programming and satellite broadcast programming to persons in rural and other areas not currently
able to receive such programming, and to spur the development of communications technologies.”).
57 See Deana Myers and Wade Holden, Online video market remains hot, SNL KAGAN, June 30, 2014, available at
http://www.snl.com/interactivex/article.aspx?id=28507994&KPLT=2.
58 See, e.g., DishWorld – Watch Live International TV Instantly, http://www.dishworld.com/ (last visited Oct. 22,
2014); supra n.1.
59 See AT&T Comments at 5 (“[I]nsofar as Congress intended the 1992 amendments to the Cable Act (including the
program access provisions) to promote competition from alternative providers and technologies in the video space, it
plainly did not intend to limit the term MVPD to those using a particular technology.”); Sky Angel Comments at 15-
16 (“Congress’ intent was to generally increase competition to monopoly cable operators and to spur the
development of new communications technologies. And it intended for these goals to be achieved on a ‘technologyneutral
basis.’ As such, it would be wholly unreasonable to exclude every service that Congress did not expressly
include in the definition.”) (quoting S. Rep. 102-92 (1991), 1992 U.S.C.C.A.N. 1133, 1159 (“Without fair and ready
access on a consistent, technology-neutral basis, an independent entity … cannot sustain itself in the market.”)); but
see infra ¶ 30 (noting that Conference Report discussing the program access provision of the 1992 Cable Act stated
that the “conferees intend that the Commission shall encourage arrangements which promote the development of
new technologies providing facilities-based competition to cable and extending programming to areas not served by
cable”) (emphasis added).Federal Communications Commission FCC 14-210
13
delivery method an entity uses to provide video programming (i) would serve Congress’s goals,60 (ii)
would promote innovation, and (iii) is consistent with the statute.61
24. 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.”62
 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.”
63 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.
64
 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 usage65 and in dictionaries,66 as well as by Congress67 and the

60 See Reply Comments of CBS Corp. at 7 (“The legislative history of the 1992 Cable Act plainly reveals the intent
of Congress that broadcasters have the opportunity to consent to - and seek compensation for - the retransmission of
their signals by any person or entity, whatever its nature.”) (“CBS Reply Comments”); see also ABC/CBS/NBC
Affiliates Comments at 15-16; Disney Reply Comments at 5; Fox Reply Comments at 8.
61 See ACA Comments at 19-20; Discovery Reply Comments at 13 (arguing that policy goals cannot override “the
Commission’s duty to adhere to the statute.”).
62 Public Knowledge Comments at 2-3; see Reply Comments of ABC Television Affiliates Association, CBS
Television Network Affiliates Association, and NBC Television Affiliates at vi-vii, 19-20, 21-22 (“ABC/CBS/NBC
Affiliates Reply Comments”).
63 Public Knowledge Comments at 4; see ABC/CBS/NBC Affiliates Reply Comments at vi-vii, 18-20, 21-22. See
also DIRECTV Comments at 6 (quoting Atlantic Cleaners & Dyers, Inc. v. U.S., 286 U.S. 427, 433 (1932) and
Environmental Defense Fund v. Duke Energy Corp., 549 U.S. 561, 575-76 (2007); Sky Angel Comments at 23-24.
But see Cablevision Comments at 6, 12 (“Generally, where a term is defined in a statute, the Commission is not free
to ignore that defined term, even when it appears in other provisions of the statute.”) (citing Sorenson v. Secretary of
Treasury, 475 U.S. 851, 860 (1986) and United States v. Altamirano-Quintero, 511 F. 3d 1087, 1101 (10th Cir.
2007) (explaining that where a term is defined in the statute, “we typically apply the same meaning to the term each
time it appears in the statute”)); Discovery Comments at 3 (“Although the definition of ‘channel’ refers only to
‘cable systems,’ Congress is presumed to have been aware of the definition of ‘channel’ when it used that term in
defining MVPD, and to have used the term deliberately.”); NCTA Reply Comments at 2 (noting the “wellestablished
(and Supreme Court-endorsed) canon of statutory construction that ‘[a]s a rule, ‘[a] definition which
declares what a term ‘means’ . . . excludes any meaning that is not stated.’’”) (quoting Colautti v. Franklin, 439 U.S.
379, 393 (1979) (quoting 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978))); see also
Comcast/NBCU Reply Comments at 6-8.
64 See S. Rep. No. 102-92 (1991), at 24, reprinted in 1992 U.S.C.C.A.N. 1133, 1157 (“[T]here are certain major
programmers that are more able to fend for themselves. It is difficult to believe a cable system would not carry the
sports channel, ESPN, or the news channel, CNN.”) (emphasis added); see also ABC/CBS/NBC Affiliates
Comments at 9. But see TWC Comments at 5 (noting that Congress referred to “networks” in the 1992 Cable Act
and its legislative history, which it claims undermines the position that Congress would have used the defined term
“channel” when it actually intended to refer to a “network.”) (citing 47 U.S.C. §§ 534(b)(2)(B), (b)(5), 535(b)(3)(C),
(f), 548(c)(3)(B); H.R. Rep. No. 102-628, at 28, 31, 40-41 (1992); S. Rep. No. 102-92 (1991), reprinted in 1992
U.S.C.C.A.N. 1133, 1144, 1158, 1162, 1168).
65 See ABC/CBS/NBC Affiliates Reply Comments at 19-20 (“When a viewer says that her favorite channel is
‘Channel 5,’ she certainly does not mean that her favorite swath of spectrum is 76 MHz to 82 MHz.”) (emphasis in
original); DIRECTV Reply Comments at 5 (“MVPDs commonly post a ‘Channel Lineup’ that lists the programming
networks they carry, not the six megahertz of bandwidth into which their systems have been divided. . . . [M]any
networks [] call themselves ‘Channel,’ [such as] ‘Discovery Channel.’”); see also Public Knowledge Comments at
11; Sky Angel Reply Comments at 28; but see Cablevision Comments at 13. Federal Communications Commission FCC 14-210
14
Commission.68
 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.69 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.
70
 We seek comment on this tentative conclusion.
25. 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.71 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?72

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?73
 Should we interpret the term “channels of video programming” to require a certain
(Continued from previous page)
66 See Public Knowledge Comments at 7 (citing Oxford English Dictionary); ABC/CBS/NBC Affiliates Reply
Comments at 19-20; but see Cablevision Comments at 13-14 (citing Merriam-Webster Dictionary and American
Heritage Dictionary); Discovery Comments at 7 (citing Webster’s II New College Dictionary).
67 See Sky Angel Comments at 25-28 (providing 23 references to the legislative history of the 1992 Cable Act in
which members of Congress referred to a “channel” as a video programming network); ABC/CBS/NBC Affiliates
Comments at 9; ABC/CBS/NBC Affiliates Reply Comments at 20-21; but see Discovery Comments at 7-8
(providing examples from the U.S. Code where the term “channel” refers to a pathway); ACA Comments at 20;
TWC Comments at 5.
68 See ABC/CBS/NBC Affiliates Comments at 9; DIRECTV Comments at 11; Public Knowledge Comments at 5-7;
Sky Angel Comments at 28-31; but see Cablevision Comments at 14-15.
69 See supra ¶ 23 (discussing how this interpretation would further the 1992 Cable Act’s goal of increased
“competition and diversity in the multichannel video programming market”).
70 See Michiel Willems, Co-CEO of thePlatform: “TV Everywhere is the natural evolution” of subscription video,
SNL KAGAN, Sept. 15, 2014, available at https://www.snl.com/interactivex/article.aspx?id=29204558&KPLT=6
(“We even see a growing interest from operators looking at ways to deliver live linear channels via the cloud in
order to support consumer demand across devices.”); Advanced Television Systems and their Impact upon the
Existing Television Broadcast Service, Sixth Further Notice Of Proposed Rulemaking, 11 FCC Rcd. 10968, 11000
(1996) (suggesting that, to viewers, “the term ‘channel’ implies a single stream of video programming.”).
71
 See Merriam-Webster definition of multiple, http://www.merriam-webster.com/dictionary/multiple (defining
multiple to mean “more than one” but also “many, manifold”). See also infra ¶ 29 (seeking comment on the
meaning of “multiple” in the context of the Transmission Path Interpretation).
72 See id.
73 For example, CBS recently launched an Internet-based linear subscription streaming service that provides
subscribers with their local market’s CBS channel. At launch, each subscriber can access a single channel (the
channel in the subscriber’s local market); the service launched in 14 different local markets. See Dylan Love, CBS
(continued….)Federal Communications Commission FCC 14-210
15
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.74
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.
26. 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.75
 A potential consequence of the Linear
Programming Interpretation would be that a programmer that decides to sell two or more of its own
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.
27. Under the Act, an entity is an MVPD only if it makes multiple channels of video
programming “available for purchase.”76
 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”?77 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
(Continued from previous page)
On ‘All Access’: We're Not Disrupting Cable TV; Just Bolstering Local TV Stations, INTERNATIONAL BUSINESS
TIMES (Oct. 17, 2014, 2:45PM), http://www.ibtimes.com/cbs-all-access-were-not-disrupting-cable-tv-justbolstering-local-tv-stations-1707086
(quoting a CBS executive’s description of the service: “We're not launching a
national feed, you get your local market’s feed.”).
74 See MLB.tv, http://mlb.mlb.com/mlb/subscriptions/; MLS Live, http://live.mlssoccer.com/mlsmdl/; What is NBA
League Pass?, http://www.nba.com/nba_tv/league_pass.html; NHL GameCenter Live,
https://gamecenter.nhl.com/nhlgc/secure/gclsignup?CMPID=GCL:vnty.
75 See id.; CBS All Access FAQ,
https://cbsi.secure.force.com/CBSi/knowledgehome_allaccess?referer=cbs.com/vod&categories=CBS_Entertainmen
t%3AAll_Access
76 47 U.S.C. § 522(13).
77 See, e.g., Xfinity TV Go, http://xfinitytv.comcast.net/watch-live-tv; Time Warner Cable TWC TV,
https://video2.timewarnercable.com/; DISH Anywhere, http://www.dishanywhere.com/.Federal Communications Commission FCC 14-210
16
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.
28. 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.78
 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?
2. Alternative “Transmission Path Interpretation”
29. 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,”79 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.”80
 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?81
 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

78 See Comcast Comments at 13 n.45; NCTA Reply Comments at 7 (raising the question of how the Commission
would enforce rules against foreign entities).
79 47 U.S.C. § 522(4) (emphasis added). The Commission’s regulations also define a “cable television channel” as a
“signaling path provided by a cable television system.” 47 C.F.R. § 76.5(r)-(u).
80 Sky Angel Standstill Denial, 25 FCC Rcd at 3882-83, ¶ 7. Based on the limited record at the time, the Media
Bureau found that Sky Angel did not appear to provide its subscribers with a transmission path; rather, it is the Sky
Angel subscriber’s Internet service provider that provides the transmission path. See id.
81 See Implementation of Section 302 of the Telecommunications Act of 1996, Third Report and Order and Second
Order on Reconsideration, 11 FCC Rcd 20227, 20301, ¶ 171 (1996) (“[W]e find Rainbow’s argument that video
programming providers cannot qualify as MVPDs because they may not operate the vehicle for distribution to be
unsupported by the plain language of Section 602(13), which imposes no such requirement.”) (“OVS Second Order
on Recon”); see also Implementation of Sections of the Cable Television Consumer Protection and Competition Act
of 1992: Rate Regulation, Report and Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd 5631, 5651-
52, ¶ 23 (1993) (“TCI asserts that, by including television receive-only satellite programming distributors in the
definition of a multichannel video programming distributor, Congress showed that a distributor need not be
facilities-based in order to come within the scope of the effective competition test. We agree with TCI that a
qualifying distributor need not own its own basic transmission and distribution facilities.”) (“1993 Rate Regulation
Order”). Federal Communications Commission FCC 14-210
17
operators using switched digital video (“SDV”) technology82 or an IP-based system in which no unique
transmission path is associated with any video programming stream?
83
 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?
30. 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.84
 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.”85
 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.”86
 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.
31. 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.87
 We seek comment on our regulatory authority under

82 SDV is “a method of delivering programming to subscribers only when those subscribers actively request that
programming, as opposed to delivering all programming feeds at the same time to all subscribers.” Annual
Assessment of the Status of Competition in the Market for Delivery of Video Programming, Notice of Inquiry, 24
FCC Rcd 750, 764, ¶ 30 (2009); Carriage of Digital Television Broadcast Signals, Third Report and Order and
Third Further Notice of Proposed Rulemaking, 22 FCC Rcd 21064, 21095, ¶ 60 (2007); see also Sky Angel
Comments at 22 (claiming that requiring an entity to provide “multiple transmission paths” would exclude cable
systems that rely on SDV technology, because these systems “transmit only a single ‘cable channel’ . . . to each
home rather than simultaneously transmit ‘multiple channels’ to every subscriber”); Sky Angel Reply Comments at
29 (same).
83 See AT&T Reply Comments at 2-3 (“[I]n an IP-based network/system, such as our own Uverse TV service, which
is an MVPD service, there is no unique ‘transmission path’ associated with any particular ‘channel’ or programming
stream, or over which programming packets are routed. Rather, the packets of multiple programming streams (or
channels) share the same transmission path – often at the same time (such as when multiple viewers in a home are
watching different channels at the same time).”).
84 See H.R. Rep. No. 102-862 (1992) (Conf. Rep.), at 93, reprinted in 1992 U.S.C.C.A.N. 1231, 1275 (discussing the
program access provision of the 1992 Cable Act and stating that the “conferees intend that the Commission shall
encourage arrangements which promote the development of new technologies providing facilities-based competition
to cable and extending programming to areas not served by cable”).
85 Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of 1992:
Development of Competition and Diversity in Video Programming Distribution and Carriage, First Report and
Order, 8 FCC Rcd 3359, 3384, n.79 (1993) (“1993 Program Access Order”).
86 ABC/CBS/NBC Affiliates Reply Comments at 10-11 (emphasis in original). See also Sky Angel Reply
Comments at 16.
87 See supra n.1.Federal Communications Commission FCC 14-210
18
the Transmission Path Interpretation in these cases.
88
 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 more
support for the Linear Programming Interpretation. We seek comment on this analysis.
32. We invite comment on any other interpretation the Commission should consider in
addition to the Linear Programming Interpretation and the Transmission Path Interpretation.
B. Regulatory Implications of Alternative Interpretations
33. 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.
34. 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.89 These
services reportedly will carry programming from some of the largest content companies in the world.90

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.91 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?
1. Application of MVPD-Specific Regulatory Privileges and Obligations to
Internet-Based Distributors of Video Programming
35. 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,

88 We also seek comment below on our tentative conclusion that video programming services that a cable operator
may offer over the Internet should not be regulated as cable services, but rather as non-cable MVPD services. See
infra ¶ 78.
89 See supra n.1.
90 See Lance Whitney, Sony to launch PlayStation Vue, an online TV service that challenges cable, CNET (Nov. 13,
2014, 7:02 AM), http://www.cnet.com/news/sony-to-launch-online-tv-service-to-challenge-cable-tv/; David
Lieberman, Scripps Networks Agrees To Supply Channels To Dish Network’s Planned Streaming Video Service,
DEADLINE (Sept. 16, 2014), http://deadline.com/2014/09/scripps-networks-offers-channels-dish-streaming-service-
834957/; Chris Welch, Verizon's internet TV service coming in mid-2015, may let you pick only channels you want,
THE VERGE (Sept. 11, 2014, 11:37 AM), http://www.theverge.com/2014/9/11/6135737/verizon-internet-tv-comingmid-2015.

91 See Letter from Rebecca Rini, Counsel to FilmOnX, LLC, to Marlene H. Dortch, Secretary, Federal
Communications Commission, MB Docket No. 12-83, at 2 (Nov. 10, 2014); Letter from Seth D. Greenstein,
Counsel to Aereo, to Marlene Dortch, Secretary, Federal Communications Commission, MB Docket No. 12-83, at
2-3 (Oct. 10, 2014); Supplemental Comments of Sky Angel U.S. at 1-2, MB Docket No. 12-80 (filed June 10, 2014).Federal Communications Commission FCC 14-210
19
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.
a. General Privileges and Obligations
36. 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 rules92 and the retransmission
consent rules.93
 Among the regulatory obligations of MVPDs are statutory and regulatory requirements
relating to (i) program carriage;94 (ii) the competitive availability of navigation devices (including the
integration ban);95 (iii) good faith negotiation with broadcasters for retransmission consent;96 (iv) Equal
Employment Opportunity (“EEO”);97 (v) closed captioning;98 (vi) video description;99 (vii) access to
emergency information;100 (vi) signal leakage;101 (vii) inside wiring;
102 and (viii) the loudness of
commercials.103
37. 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?

92 See 47 U.S.C. § 548; 47 C.F.R. §§ 76.1000-1004. Among other things, these rules require cable-affiliated
programmers to make their programming available to MVPDs on nondiscriminatory rates, terms, and conditions.
93 See 47 U.S.C. § 325(b)(3)(C)(ii); 47 C.F.R. § 76.65. Among other things, these rules require broadcasters to
negotiate in good faith with MVPDs for retransmission consent.
94 See 47 U.S.C. § 536; 47 C.F.R. §§ 76.1300-1302.
95 See 47 U.S.C. § 549; 47 C.F.R. §§ 76.1200-1210.
96 See 47 U.S.C. § 325(b)(3)(C)(iii); 47 C.F.R. § 76.65(b).
97 See 47 C.F.R. §§ 76.71-79, 76.1792, 76.1802.
98 See 47 C.F.R. § 79.1. We note, however, that video programming delivered via Internet protocol is subject to
separate closed captioning obligations under 47 C.F.R. § 79.4.
99 See 47 C.F.R. § 79.3.
100 See 47 C.F.R. § 79.2.
101 See 47 C.F.R. § 76.610; see also 47 C.F.R. §§ 76.605(a)(12), 76.611, 76.614, 76.1803; 1.1705(a)(1) (FCC Form
320 – Basic Signal Leakage Performance Report). These rules apply only to the extent that aeronautical frequencies
are used.
102 See 47 C.F.R. §§ 76.800-806. These rules apply only to the extent the MVPD owns inside wiring.
103 See Commercial Advertisement Loudness Mitigation (“CALM”), Pub. L. No. 111-311, 124 Stat. 3294 (2010)
(codified at 47 U.S.C. § 621); see also 47 C.F.R. § 76.607; Implementation of the Commercial Advertisement
Loudness Mitigation (CALM) Act, Report and Order, 26 FCC Rcd 17222 (2011).Federal Communications Commission FCC 14-210
20
38. 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?104

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?
105
 If Internet-based
distributors compete with traditional MVPDs,
106 should they be subject to the same regulatory obligations
as traditional MVPDs?
107

b. Specific Privileges and Obligations
(i) Privileges
39. 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 cableaffiliated
programmers and broadcasters? To what extent would the public be harmed if these privileges
did not extend to Internet-based distributors of video programming?
(a) Program Access
40. 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.108
 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

104 See CCIA Comments at 4-5; Open Internet Coalition Comments at 5; Google Reply Comments at 3 n.11 (arguing
that imposing MVPD requirements on online video companies will damage the still-developing market for those
services); see also MPAA Comments at 3-4; Verizon Comments at 1-2; Comcast/NBCU Reply Comments at 11;
Discovery Reply Comments at 3-5; but see Sky Angel Reply Comments at 35-36 (stating that commenters “greatly
exaggerate” the burdens of regulations applicable to MVPDs).
105 See DIRECTV Comments at 15-16 (“[T]he Commission must recognize the rapidly developing capabilities of
OVDs and other new-entrant MVPDs which are becoming true competitors to traditional MVPDs. . . . Nontraditional
MVPDs have gone from mere curiosities to emerging competitors in a very short period of time, and
continue to develop rapidly as the speed and ubiquity of broadband infrastructure improves. In these circumstances,
it is appropriate to apply core regulatory rights and responsibilities to both traditional and non-traditional MVPDs.”);
DIRECTV Reply Comments at 7-8; Reply Comments of the National Association of Broadcasters at 2 (“NAB
Reply”); Sky Angel Reply Comments at 34-35.
106 The Commission has stated that online distributors of video programming “offer a tangible opportunity to bring
customers substantial benefits” and that they “can provide and promote more programming choices, viewing
flexibility, technological innovation and lower prices.” Comcast Corporation, General Electric Company and NBC
Universal, Inc., Memorandum Opinion and Order, 26 FCC Rcd 4238, 4268-69, ¶ 78 (2011) (“Comcast/NBCU
Order”). While the Commission concluded that consumers do not perceive online distributors as a substitute for
traditional MVPD service, it stated that online distributors are a “potential competitive threat” and that they “must
have a similar array of programming” if they are to “fully compete against a traditional MVPD.” Id. at 4269, ¶ 79,
4272-73, ¶ 86; see also id. at 4266, ¶ 70 (“Without access to online content on competitive terms, an MVPD would
suffer a distinct competitive disadvantage compared to Comcast, to the detriment of competition and consumers.”).
107 We note that even if an Internet-based distributor qualifies as an MVPD it will not be subject to a number of
regulations and statutory requirements applicable to cable and DBS operators unless it also qualifies as one of those
services. See, e.g., 47 C.F.R. §§ 76.92, 76.122 (network non-duplication rules, which apply to cable operators) ; 47
U.S.C. §§ 338, 534, 535 (carry-one, carry-all and must carry requirements, which apply to DBS and cable operators,
respectively); 47 U.S.C. § 315, 335(a), 47 C.F.R. §§ 76.205-206, 76.1611, 76.1701; 47 C.F.R. § 25.701(b)-(d)
(political programming and candidate access obligations for DBS and cable operators).
108 See 47 U.S.C. § 548.Federal Communications Commission FCC 14-210
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“hinder[ing] significantly or prevent[ing]” an MVPD from providing programming to subscribers or
consumers (the “unfair act” prohibition);
109 (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);110 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 “nondiscrimination”
rule).
111
 To the extent that an MVPD believes that a cable-affiliated programmer has
violated these rules, it may file a complaint with the Commission.112

41. 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?
113
 How will this impact the value of cable-affiliated programming to traditional MVPDs,
especially as compared to non-cable-affiliated programming?
114
 To the extent that licensing programming
to a 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?115
 Would extending
the reach of the program access rules have a positive effect for consumers?

109 See 47 U.S.C. § 548(b); 47 C.F.R. § 76.1001(a); Revision of the Commission’s Program Access Rules, Report
and Order, 27 FCC Rcd 12605, 12640-45, ¶¶ 52-58 (2012) (“2012 Program Access Order”) (explaining the process
for challenging exclusive contracts involving satellite-delivered, cable-affiliated programming pursuant to the unfair
act prohibition); Review of the Commission’s Program Access Rules and Examination of Programming Tying
Arrangements, First Report and Order, 25 FCC Rcd 746 (2010) (“2010 Program Access Order”), affirmed in part
and vacated in part sub nom. Cablevision Sys. Corp. et al. v. FCC, 649 F.3d 695 (D.C. Cir. 2011) (“Cablevision II”)
(establishing procedures for challenging allegedly unfair acts involving terrestrially delivered, cable-affiliated
programming pursuant to the unfair act prohibition).
110 See 47 U.S.C. § 548(c)(2)(A); 47 C.F.R. § 76.1002(a).
111 See 47 U.S.C. § 548(c)(2)(B); 47 C.F.R. § 76.1002(b).
112 See 47 U.S.C. § 548(d); 47 C.F.R. § 76.1003.
113 See Comcast Comments at 11-12 (arguing that thousands of entities would make program access claims); NCTA
Reply Comments at 6-7; but see DIRECTV Comments at 13; DIRECTV Reply Comments at 8; Sky Angel Reply
Comments at 11-12 (asserting that few companies would qualify as MVPDs).
114 See Discovery Comments at 13 (“Negotiated license fees between MVPDs and programmers today are based in
part on an MVPD’s expectation of whether the availability of a network is likely to induce subscribers to use the
MVPD’s services. While nearly every MVPD today faces competition from several other distributors, the number
and popularity of those distributors is fairly easily identified and factored into the price as necessary. If the same
programming network is available through an unknown and unlimited number of online sources, that network’s
value to the facilities-based MVPD may be diminished, as may be the price the MVPD is willing to pay for it.”);
Discovery Reply Comments at 5-7; Ovation Reply Comments at 4.
115 See Cellularvision of New York, L.P. v. Sportschannel Associates, Order on Reconsideration, 11 FCC Rcd 3001,
3003, ¶ 11 (Cable Servs. Bur., 1996) (“While the program access provisions clearly allow programmers to refuse to
provide programming for a legitimate business reason, such as concerns about signal security, the Commission
cannot simply defer to a programmer’s assessment of whether its concerns are reasonable.”); see also 47 U.S.C. §
548(c)(2)(B)(i) (providing that the program access rule prohibiting discrimination does not preclude a cableaffiliated
programmer from “imposing reasonable . . . standards regarding . . . technical quality”); 47 C.F.R. §
76.1002(b)(1) (same). We also note that the statute provides permissible factors for programmers to consider when
they set rates for programming. See Implementation of Sections 12 and 19 of the Cable Television Consumer
Protection and Competition Act of 1992: Development of Competition and Diversity in Video Programming
Distribution and Carriage, First Report and Order, 8 FCC Rcd 3359, 3364, ¶ 14 (1993) (“[W]e will find price
discrimination to have occurred if the difference in the price charged to competing distributors is not explained by
the statute’s permissible factors. In general terms, these factors involve (1) cost differences at the wholesale level in
(continued….)Federal Communications Commission FCC 14-210
22
42. 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.
116
 Among other things, the program access
rules are intended to prevent cable-affiliated programmers from discriminating among similarly situated
MVPDs.117
 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?
118
 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.
119
 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?
(b) Retransmission Consent
43. Section 325(b) of the Act benefits MVPDs by requiring broadcasters to negotiate in good
faith with MVPDs for retransmission consent120 and prohibiting broadcasters from negotiating exclusive
retransmission consent agreements with any MVPD.121
 Absent these provisions, broadcasters could
potentially refuse to negotiate with and thereby withhold their signals from MVPDs that wish to carry
(Continued from previous page)
providing a program service to different distributors; (2) volume differences; (3) differences in creditworthiness,
financial stability, or character; and (4) differences in the way the service is offered.”).
116 See supra n.106 (discussing Internet-based distributors as a potential competitive threat to traditional MVPDs);
see also Comments of the Writers Guild of America, West, Inc. at 4 (“Without including these new entities within
the MVPD definition, vertically integrated MVPDs such as DirecTV, Comcast and Cablevision could opt to
withhold their programming from new competitors.”) (“WGA-West Comments”); Sky Angel Comments at 36-39.
117 See 47 U.S.C. § 548(c)(2)(B) (requiring the Commission to adopt regulations that “prohibit discrimination by a
satellite cable programming vendor in which a cable operator has an attributable interest or by a satellite broadcast
programming vendor in the prices, terms, and conditions of sale or delivery of satellite cable programming or
satellite broadcast programming among or between cable systems, cable operators, or other multichannel video
programming distributors, or their agents or buying groups . . . .”).
118 We seek comment below on whether networks have the rights to license this programming for online distribution
at all. See infra ¶¶ 67-69.
119 See Cablevision Comments at 2 (arguing that “cable operators, saddled with legacy rules and business practices,
could find [it] difficult to match” services offered by Internet-based services). But see Reply Comments of Public
Knowledge at 9 (“online MVPDs will have capital and content costs like any others”); DIRECTV Comments at 13-
14.
120 See 47 U.S.C. § 325(b)(3)(C)(ii); 47 C.F.R. § 76.65. This provision also imposes a reciprocal obligation on
MVPDs to negotiate in good faith with broadcasters for retransmission consent. See 47 U.S.C. § 325(b)(3)(C)(iii);
47 C.F.R. § 76.65. We discuss this obligation below. See infra ¶¶ 50-53.
121 See 47 U.S.C. § 325(b)(3)(C)(ii); 47 C.F.R. § 76.65(l).Federal Communications Commission FCC 14-210
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these signals.122
 To the extent that an MVPD believes that a broadcaster has violated these provisions, it
may file a complaint with the Commission.123
44. 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.
124 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?
125
 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.
126

45. 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.127

But an entity wishing to retransmit a broadcast signal also must obtain authorization to publicly perform
the copyrighted works within the broadcast signal.128
 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?
129
(ii) Obligations
46. 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?
47. 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?
(a) Program Carriage
48. 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;130 (ii) coercing a video

122 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 . . . .” 47 U.S.C. § 325(b)(1)(A).
123 See 47 C.F.R. § 76.65(c).
124 We seek comment below on how the interpretation of the definition of the MVPD will impact the statutory
copyright licenses. See infra ¶ 66.
125 See Comcast Comments at 11-12 (“If OVDs were deemed MVPDs . . . broadcasters potentially would face the
prospect of having to negotiate retransmission consent agreements – and the duty to bargain in good faith – with
thousands of OVDs. . . . [T]here are bound to be disputes that will lead to complaints at the Commission,
undermining ongoing marketplace negotiations and burdening Commission staff and resources.”).
126 See supra n.106 (discussing Internet-based distributors as a potential competitive threat to traditional MVPDs).
127 47 U.S.C. § 325(b)(1)(A) (emphasis added); see also 47 C.F.R. § 76.64.
128 17 U.S.C. §§ 106, 111; American Broadcasting Companies, Inc. v. Aereo, Inc., 134 S.Ct. 2498, 2507 (2014).
129 See also infra ¶ 66.
130 See 47 C.F.R. § 76.1301(a); see also 47 U.S.C. § 536(a)(1).Federal Communications Commission FCC 14-210
24
programming vendor to provide, or retaliating against a vendor for failing to provide, exclusive rights as a
condition of carriage; 131 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.132
 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.133

49. What practical impact, if any, would these rules have on Internet-based distributors of
video programming?134
 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.135 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.
136 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.
137
 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?
(b) Retransmission Consent
50. 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 . . . .”138
 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.139
 If a broadcaster believes that an MVPD has violated these provisions, it may
file a complaint with the Commission.140


131 See 47 C.F.R. § 76.1301(b); see also 47 U.S.C. § 536(a)(2).
132 See 47 C.F.R. § 76.1301(c); see also 47 U.S.C. § 536(a)(3).
133 See 47 U.S.C. § 536(a)(4); see also 47 C.F.R. § 76.1302.
134 See Sky Angel Reply Comments at 35 (“The program carriage rules would have little, if any effect, because they
do not mandate carriage.”).
135 See supra n.1 (citing press reports that Sony, Dish Network, DIRECTV and Verizon each plan to launch online
linear video services).
136 See 47 C.F.R. § 76.1301(a)-(b); see also 47 U.S.C. § 536(a)(1)-(2).
137 See Neil Irwin, Netflix vs. Amazon, and the New Economics of Television, THE NEW YORK TIMES, April 25, 2014,
available at http://www.nytimes.com/2014/04/27/upshot/netflix-vs-amazon-and-the-new-economics-oftelevision.html?abt=0002&abg=0;
47 C.F.R. § 76.1301(c); see also 47 U.S.C. § 536(a)(3).
138 47 U.S.C. § 325(b)(1)(A) (emphasis added); see also 47 C.F.R. § 76.64.
139 See 47 U.S.C. § 325(b)(3)(C)(iii); 47 C.F.R. § 76.65. This provision also imposes a reciprocal obligation on
broadcasters to negotiate in good faith with MVPDs for retransmission consent. See 47 U.S.C. § 325(b)(3)(C)(ii);
47 C.F.R. § 76.65. We discuss this obligation in greater detail above. See supra ¶¶ 43-45.
140 See 47 C.F.R. § 76.65(c). Federal Communications Commission FCC 14-210
25
51. We seek comment above on how the retransmission consent rules can benefit 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?
52. 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? 141
 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?
53. 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?142

Would limiting or prohibiting these provisions harm localism?
(c) Other MVPD Obligations
54. Closed Captioning. Section 79.1 of the Commission’s rules (the “television closed
captioning rules”) requires MVPDs143 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.”144

Internet video services are not subject to these requirements.145
 Internet-based distributors of video

141 See 47 C.F.R. § 76.65(b)(1)(i) (providing that the refusal by a Negotiating Entity (defined to include an MVPD)
to negotiate retransmission consent violates the Negotiating Entity’s duty to negotiate in good faith); 47 C.F.R. §
76.65(b)(1)(iv) (providing that the refusal by a Negotiating Entity (defined to include an MVPD) to put forth more
than a single, unilateral proposal violates the Negotiating Entity’s duty to negotiate in good faith); but see 47 C.F.R.
§ 76.65(a)(2) (“If a television broadcast station or multichannel video programming distributor negotiates in
accordance with the rules and procedures set forth in this section, failure to reach an agreement is not an indication
of a failure to negotiate in good faith.”); 2005 Reciprocal Bargaining Order, 20 FCC Rcd at 10345, ¶ 14
(“[P]rovided that a party to a reciprocal bargaining negotiation complies with the requirements of the Commission’s
rules, failure to reach agreement would not violate either Section 325(b)(3)(C) or Section 76.65 of the Commission’s
rules. Accordingly, NCTA’s argument that the reciprocal bargaining obligation will lead to another form of must
carry is incorrect.”); Sky Angel Reply Comments at 35 (claiming that the “retransmission consent rules do not
mandate carriage, but rather simply require MVPDs to act in good faith while ensuring that broadcasters are
adequately compensated for the retransmission of their signals”).
142 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?
143 See 47 C.F.R. § 79.1(a)(2).
144 47 C.F.R. § 79.1(a)(4); see also 47 U.S.C. § 613.
145 Closed Captioning and Video Description of Video Programming, Report and Order, 13 FCC Rcd 3272, 3385, ¶¶
249-51 (1997) (“[W]e recognize that there are issues that need to be addressed relating to the convergence of
television receivers and computers and the growth of Internet video like programming that may need to be addressed
in the future. . . . [W]e believe that further study of these issues relating to new technologies and captioning is
needed.”); Implementation of the Child Safe Viewing Act, Report, 24 FCC Rcd 11413, 11478, ¶ 149 (2009).Federal Communications Commission FCC 14-210
26
programming, however, are subject to the Commission’s Internet protocol (“IP”) closed captioning
requirements set forth in Section 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.146
 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,147 whereas the television
closed captioning rules require closed captioning for all new nonexempt English- and Spanish-language
video programming.148
 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 Section
79.1 of the Commission’s rules.”149 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?150
 Will they be subject to Section 79.1 or 79.4 of the Commission’s rules, or will the
Commission need to develop another set of requirements tailored to these services?
151 Will we need to
amend our closed captioning rules if we adopt the Linear Programming Interpretation, and if so, how?
55. Video Description. As required by the CVAA,152 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,
153 on each of the five
most popular nonbroadcast networks.154
 In general, MVPDs of any size must pass through any video

146 See Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First
Century Communications and Video Accessibility Act of 2010, Report and Order, 27 FCC Rcd 787 (2012) (“IP
Closed Captioning Order”); see also 47 U.S.C. § 613(c); 47 C.F.R. § 79.4(a)(3).
147 See 47 U.S.C. § 613(c)(2)(A); see also 47 C.F.R. § 79.4(b); IP Closed Captioning Order, 27 FCC Rcd at 804-05,
¶ 25 (the IP closed captioning requirement “is triggered only after the programming has been shown on television
with closed captions”).
148 See 47 C.F.R. § 79.1(b); IP Closed Captioning Order, 27 FCC Rcd at 795-96, ¶ 11. See 47 C.F.R. § 79.1(b); IP
Closed Captioning Order, 27 FCC Rcd at 795-96, ¶ 11. “New” programming refers to analog video programming
first published or exhibited on or after January 1, 1998, or digital video programming first published or exhibited on
or after July 1, 2002. 47 C.F.R. §§ 79.1(a)(5). The Commission’s television closed captioning rules also require
closed captioning of 75% of a programming distributor’s pre-rule, nonexempt English and Spanish language
programming that is distributed and exhibited on each channel during each calendar quarter. 47 C.F.R. §§
79.1(b)(2)(ii), (b)(4)(ii). “Pre-rule” programming refers to analog video programming first published or exhibited
before January 1, 1998, or digital video programing first published or exhibited before July 1, 2002. 47 C.F.R. §
79.1(a)(8). See 47 C.F.R. § 79.1(b); IP Closed Captioning Order, 27 FCC Rcd at 795-96, ¶ 11.
149 See IP Closed Captioning Order, 27 FCC Rcd at 795-96, ¶ 11.
150 Because the Commission to date has not determined the extent to which Internet-based distributors of video
programming qualify as MVPDs (and thus would be covered by the television closed captioning rules), we expect
that Internet-based distributors of video programming are currently complying with at least the IP closed captioning
rules.
151 See IP Closed Captioning Order, 27 FCC Rcd at 795-96, ¶ 11.
152 See Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, Title II, §
202(a), 124 Stat. 2751, 2767-70 (2010) (codified at 47 U.S.C. § 613(f)) (“CVAA”); see also 47 C.F.R. § 79.3; Video
Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010,
Report and Order, 26 FCC Rcd 11847 (2011) (“Video Description Order”).
153 Video description is defined as “the insertion of audio narrated descriptions of a television program’s key visual
elements into natural pauses between the program’s dialogue.” 47 U.S.C. § 613(h)(1); 47 C.F.R. § 79.3(a)(3).
154 47 C.F.R. § 79.3(b)(4). The top five national nonbroadcast networks for the purposes of these rules are USA, the
Disney Channel, TNT, Nickelodeon, and TBS. See Video Description Order, 26 FCC Rcd at 11854, ¶ 13. This list
will be updated on July 1, 2015 and at three-year intervals. See id. at 11857, ¶ 18; see also 47 C.F.R. § 79.3(b)(4).Federal Communications Commission FCC 14-210
27
description provided with programming they carry, including broadcast channels, as long as they have the
technical capability to do so.155
 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.156
 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.157
 Are there attributes of Internet-based distributors of
video programming that make compliance with these requirements more burdensome than for traditional
MVPDs?158
 We also seek comment on our authority to extend our video description regulations to
Internet-delivered MVPDs under the Linear Programming Interpretation.159
 Will we need to amend our
video description rules if we adopt the Linear Programming Interpretation, and if so, how?
56. 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.160
 And to make emergency information accessible to individuals who are blind
or visually impaired, 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.161
 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.162 Will we need to amend our
emergency information accessibility rules if we adopt the Linear Programming Interpretation, and if so,
how?
57. 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.”
163 We seek comment on the costs and
the practical impact these obligations will have on Internet-based distributors of video programming that

155 47 C.F.R. § 79.3(b)(5).
156 47 C.F.R. § 79.105.
157 See Sky Angel Reply Comments at 36 (claiming that the video description rules are not burdensome because they
“apply only to large MVPDs, and only with respect to the top-five non-broadcast networks” and because they “only
require fifty hours of described programming per calendar quarter, and these descriptions likely will be provided by
programmers, not MVPDs”). As noted above, all MVPDs, not just large ones, have certain pass-through
obligations.
158 In another proceeding arising under the CVAA, the Commission is considering whether MVPDs must comply
with video description obligations when they allow subscribers to access linear programming on tablets, laptops,
personal computers, smartphones, or similar devices. See Accessible Emergency Information, and Apparatus
Requirements for Emergency Information and Video Description: Implementation Of The Twenty-First Century
Communications And Video Accessibility Act Of 2010, Report and Order and Further Notice of Proposed
Rulemaking, 28 FCC Rcd 4871, 4927-28, ¶¶ 83-84 (2013) (“Video Description Further Notice”).
159 See Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act
of 2010, Report, 29 FCC Rcd 8011, 8012, n.2 (MB 2014) (“Video programming delivered using [IP] includes, but is
not limited to, video programming that is available on the Internet . . . To the extent a multichannel video
programming distributor [MVPD] uses IP to distribute its traditional managed video services to its MVPD
customers within its service footprint, however, that service is subject to the existing video description rules that
apply to MVPDs, notwithstanding the use of IP technology.”).
160 See 47 C.F.R. § 79.2.
161 See 47 C.F.R. § 79.105.
162 The Commission is also considering this issue in the Video Description Further Notice. 28 FCC Rcd at 4926-
4928, ¶¶ 80-84.
163 47 C.F.R. § 79.108.Federal Communications Commission FCC 14-210
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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.164
 Will we need to amend our user interface accessibility
rules if we adopt the Linear Programming Interpretation, and if so, how?
58. Equal Employment Opportunities (“EEO”). The Commission’s EEO rules apply to
MVPDs.165
 In general terms, these rules (i) require MVPDs to provide equal opportunity in employment
to all qualified persons and prohibit MVPDs from discriminating in employment based on race, color,
religion, national origin, age, or sex;166 (ii) require MVPDs to engage in certain outreach and recruitment
activities;167 and (iii) require MVPDs to comply with certain reporting and recordkeeping requirements.168

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?169
 Will we need to amend our EEO rules if we adopt
the Linear Programming Interpretation, and if so, how?
59. 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.170
 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.171
 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.”172
 Do Internet-based
distributors meet the requirements for an exemption from the integration ban?173
 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?

164 47 C.F.R. § 79.107.
165 See 47 U.S.C. § 554(h); 47 C.F.R. § 76.71(a); see also 47 C.F.R. § 25.601 (extending EEO obligations to DBS).
166 See 47 U.S.C. § 554(b); 47 C.F.R. § 76.73(a); see also 47 U.S.C. § 554(c); 47 C.F.R. § 76.73(b).
167 See 47 C.F.R. § 76.75(a)-(b), (e).
168 See 47 C.F.R. §§ 76.75(c); 76.77(a), (d); 76.1702; 76.1802.
169 Sky Angel claims that the Commission’s EEO requirements “are not oppressive, and in fact are less burdensome
than many states’ generally applicable EEO laws.” Sky Angel Reply Comments at 36.
170 See 47 U.S.C. § 549; 47 C.F.R. §§ 76.1200-1210.
171 See 47 C.F.R. §§ 76.1201-76.1204
172 Sky Angel Comments at 19.
173 See Sky Angel Reply Comments at 36 (claiming that, “although the navigation device requirement ‘nominally
applies to all MVPDs,’ the Commission ‘has applied its rules only to cable operators’”). Despite Sky Angel’s claim,
MVPDs are exempt from the integration ban if they support navigation devices that “operate throughout the
continental United States” and are available from retail sources that are not affiliated with the MVPD. 47 C.F.R. §
76.1204(a)(2)(ii). Many of the requirements in Sections 76.1200-76.1210 apply to MVPDs, and MVPDs that
disregard those rules are subject to enforcement. Federal Communications Commission FCC 14-210
29
60. Signal Leakage. The Commission’s rules require specified MVPDs to comply with
certain technical rules pertaining to signal leakage,
174 as well as reporting175 and notification176
requirements related thereto.177
 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. 178 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?
61. Inside Wiring. The Commission’s cable inside wiring rules apply to all MVPDs.179
 In
general terms, these rules govern the disposition of home wiring180 and home run wiring181 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.
62. Commercial Loudness. As required by the CALM Act,182 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.183
 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.184
 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?

174 See 47 C.F.R. § 76.610; see also 47 C.F.R. §§ 76.605(a)(12), 76.611, 76.612, 76.613, 76.614, 76.616, 76.617.
175 See 47 C.F.R. §§ 76.1803 (signal leakage monitoring and reporting); 1.1705(a)(1) (FCC Form 320 – Basic Signal
Leakage Performance Report).
176 See 47 C.F.R. §§ 76.1804.
177 The Commission is currently considering updating these rules to facilitate the transition from analog to digital
transmission systems. See Cable Television Technical and Operational Requirements, Notice of Proposed
Rulemaking, 27 FCC Rcd 9678 (2012).
178 Section 76.610 provides that the specified Commission rules pertaining to signal leakage apply to “all MVPDs
(cable and non-cable) transmitting carriers or other signal components carried at an average power level equal to or
greater than 10-4 watts across a 25 kHz bandwidth in any 160 microsecond period, at any point in the cable
distribution system in the frequency bands 108–137 and 225–400 MHz for any purpose.” 47 C.F.R. § 76.610.
179 See 47 C.F.R. §§ 76.802(l), 76.804(f), 76.805, 76.806(d); see also 47 U.S.C. § 544(i).
180 See 47 C.F.R. § 76.5(ll) (defining “cable home wiring” as the “internal wiring contained within the premises of a
subscriber which begins at the demarcation point. Cable home wiring includes passive splitters on the subscriber’s
side of the demarcation point, but does not include any active elements such as amplifiers, converter or decoder
boxes, or remote control units.”).
181 See 47 C.F.R. § 76.800(d) (defining “home run wiring” as the “wiring from the demarcation point to the point at
which the MVPD’s wiring becomes devoted to an individual subscriber or individual loop”).
182 See Pub. L. No. 111-311, 124 Stat. 3294 (2010) (codified at 47 U.S.C. § 621).
183 See 47 C.F.R. § 76.607; Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act,
Report and Order, 26 FCC Rcd 17222 (2011).
184 See 47 C.F.R. § 76.607.Federal Communications Commission FCC 14-210
30
63. 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.185
 The Commission has sought comment on whether to extend this prohibition to
other MVPDs.186
 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?
64. 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?
2. Impact on Content Owners
65. 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.
a. Broadcast Content
66. 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.187
 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 Act188 and even suggest that a
Commission decision interpreting the definition of MVPD to include Internet-based distributors would
conflict with copyright law.189
 But the market and legal landscape has changed significantly since content
creators and owners made those claims.
190
 Therefore, we ask commenters to update the record with
respect to how expanding the definition of MVPD in the Communications Act to include some Internetbased
distributors interrelates with copyright law.

185 See 47 C.F.R. § 76.2000(a); see also Exclusive Service Contracts for Provision of Video Services in Multiple
Dwelling Units and Other Real Estate Developments, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 20235, 20260, ¶ 51 (2007) (“MDU Order and FNPRM”), aff’d sub nom. Nat’l Cable &
Telecomm. Ass’n v. FCC, 567 F.3d 659 (D.C. Cir. 2009). The Commission’s rules provide that an “MDU shall
include a multiple dwelling unit building (such as an apartment building, condominium building or cooperative) and
any other centrally managed residential real estate development (such as a gated community, mobile home park, or
garden apartment); provided however, that MDU shall not include time share units, academic campuses and
dormitories, military bases, hotels, rooming houses, prisons, jails, halfway houses, hospitals, nursing homes or other
assisted living facilities.” 47 C.F.R. § 76.2000(b).
186 See MDU Order and FNPRM, 22 FCC Rcd at 20264-65, ¶¶ 61-62.
187 17 U.S.C. § 111.
188 See Cablevision Comments at 16; Comcast Comments at 2 n.4; MPAA Comments at 2; Disney Reply Comments
at 5; Fox Reply Comments at 6.
189 See Time Warner Reply Comments at 3; MPAA Comments at 3.
190 See supra ¶¶ 10-11.Federal Communications Commission FCC 14-210
31
b. Cable-Affiliated Content
67. 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.
191
 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.192
 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.
193
 Rather, Discovery argues that (i) content 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
websites or by selling the content to other video providers;
194 and (ii) obtaining Internet distribution rights
is simply too expensive for some networks.195
 What effect should the Copyright Office’s decisions have
on our statutory and policy analysis?
68. 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.
196
 Does this reflect that cable-affiliated programmers possess the right to authorize
distribution of content displayed on their network over the Internet?197
 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?
69. 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.

191 See supra ¶¶ 40-42.
192 See Discovery Comments at 10.
193 See Discovery Comments at 10; Discovery Reply Comments at 6.
194 See Discovery Comments at 10; Discovery Reply Comments at 6.
195 See Discovery Comments at 11; see also Ovation Reply Comments at 4.
196 14th Annual Report, 27 FCC Rcd at 8612, ¶ 6 (describing “TV Everywhere” as “an MVPD initiative, which
allows subscribers of certain services to access video programming on stationary and mobile Internet-connected
devices, including television sets, computers, tablets, and smartphones”); id. at 8618, ¶ 21 n.30 (“TV Everywhere is
an authentication system whereby certain movies and television shows are accessible online via a variety of display
devices including personal computer, mobile, and television – but only if you can prove (or ‘authenticate’) that you
have a subscription to an MVPD.”); id. at 8738, ¶ 287 (“TV Everywhere services allow MVPDs to compete with
unaffiliated OVDs by providing free on-demand Internet video to authenticated MVPD customers.”).
197 But see Comcast/NBCU Order, 26 FCC Rcd at 4280, ¶ 105 (“The Applicants further note that they may lack the
rights necessary to provide certain programming online on an unauthenticated basis.”). Federal Communications Commission FCC 14-210
32
c. Non-Broadcast, Non-Cable-Affiliated Content
70. 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.”198
 We seek comment on this concern.
C. Regulatory Treatment of Cable Operators and DBS Providers that Provide Linear
Video Services via IP
71. 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.199
 As mentioned above, cable operators and DBS providers are
obtaining rights for online distribution of content, and some have launched or may soon launch Internetbased
video programming services.200
 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.
1. Cable Service Provided via IP Over the Operator’s Facilities
72. The Act defines a cable operator as, essentially, an entity that provides cable service over
a cable system.201
 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.”202 The Commission
and other authorities have previously concluded that the statute’s definition of “cable service” includes
linear IP video service.203


198 Ovation Reply Comments at 4. See Comcast/NBCU Order, 26 FCC Rcd at 4267, ¶ 73 (“We also conclude that
Comcast-NBCU will have increased leverage to negotiate restrictive online rights from third parties, again to the
detriment of competition. Comcast-NBCU’s demand of restrictive online rights in exchange for carriage may also
cause harms to consumer choice, diversity, and broadband investment.”); see also Public Knowledge Comments at
17-18 (“While the program access rules prevent an MVPD from keeping a programmer from being carried by other
current MVPDs, nothing at the moment prevents a company like Comcast demanding, as a condition for being
carried on Comcast, that the programmer stay off of online platforms.”).
199 In this NPRM, we use the term OTT to refer to linear video services that travel over the public Internet and that
cable operators do not treat as managed video services on any cable system.
200 See supra n.1.
201 47 U.S.C. § 522(5).
202 47 U.S.C. § 522(6).
203 See Cable Television Technical and Operational Requirements, 27 FCC Rcd 9678, 9681, ¶ 5 (referring to “IP
delivery of cable service”); Office of Consumer Counsel v. Southern New England Telephone Co., 515 F.Supp.2d
269, 276 (D. Conn. 2007), vacated on other grounds, 368 Fed.Appx. 244 (2d Cir. 2010) (“Southern New England
Telephone”) (“The statutory language itself appears to require the conclusion that [IP-based] video programming
service does constitute a ‘cable service,’ as defined by the Cable Act.”).Federal Communications Commission FCC 14-210
33
73. 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,204 its facility meets the 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 ondemand
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.205

74. 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.
206
 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.”207
75. 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.
76. 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;208 Emergency Alert System (“EAS”) requirements;209 the V-Chip;210

204 The Commission previously analyzed the term “set of closed transmission paths,” and determined that Congress
most likely meant a system of copper wire and/or fiber optic cable. See Definition of a Cable Television System,
Report and Order, 5 FCC Rcd 7638, 7639, ¶ 7 (1990) (“by referring to a ‘closed’ transmission medium, the drafters
contemplated that cable system facilities would use physically closed or shielded conducting media or ‘transmission
paths,’ rather than radio waves alone. While the original Senate version of the Cable Act was not passed, we have no
basis for thinking that the Senate and House did not share a common understanding of the virtually identical terms
‘closed transmission path’ and ‘closed transmission media’ (which itself was defined as a ‘transmission path’) that
were used in their respective definitions of cable systems.”). The Commission also defined the word subscriber in
the phrase “provided to multiple subscribers within a community” to mean “a member of the general public who
receives broadcast programming distributed by a cable television system[] and does not further distribute it.”
Definition of a Cable Television System, Report and Order, 5 FCC Rcd 7638, 7642, ¶ 32 (1990).
205 47 U.S.C. § 522(7).
206 We note that this interpretation does not extend to services like “TV Everywhere” because they are not managed
video services. We seek comment on how to treat such services below. See infra ¶ 78.
207 47 U.S.C. § 522(5).
208 See 47 C.F.R. § 1.1155 (this rule specifically includes facilities-based IPTV services).Federal Communications Commission FCC 14-210
34
commercial limits in children’s programs;211 network non-duplication;212 syndicated program
exclusivity;213 notice to broadcasters regarding: (i) deletion or repositioning of a broadcast signal,214 (ii) a
change in designation of principal headend,215 (iii) change in technical configuration,216 (iv) the provision
of service to 1000 subscribers, thereby entitling broadcast stations to exercise non-duplication protection
or syndicated exclusivity protection;217 political programming and candidate access rules;218 sponsorship
identification;219 lotteries;220 public inspection file;221 public, educational, or governmental channels
(“PEG”);222 program access;223 leased access;224 various reporting requirements;225 cross-ownership
restrictions;226 prohibition on buy outs;227 national subscriber limits (horizontal ownership restriction);228
(Continued from previous page)
209 See 47 C.F.R. §§ 11.1, 11.2(c)-(d), 11.11; see also 47 C.F.R. § 76.1711 (EAS recordkeeping requirements for
cable systems).
210 Congress adopted the V-chip requirement in 1996 as part of the Parental Choice in Television Programming Act.
See 47 U.S.C. § 303(x) (added by The Telecommunications Act of 1996, Pub. L. No. 104-104, § 551(c), 110 Stat.
56, 141 (1996)). Parents with a V-chip-equipped television set or converter box can block television programming
based on its rating. See Implementation of Section 551 of the Telecommunications Act of 1996, Video Programming
Ratings, Report and Order, 13 FCC Rcd 8232 (1998) (“TV Parental Guidelines Order”). The V-chip requirement
currently applies to certain television broadcast receivers (based on size) and digital television receivers without an
associated display device. See 47 C.F.R. § 15.120(b); Technical Requirements to Enable Blocking of Video
Programming Based on Program Ratings, Report and Order, 13 FCC Rcd 11248 (1998).
211 See 47 C.F.R. §§ 76.225, 76.1703.
212 See 47 C.F.R. §§ 76.92-95.
213 See 47 C.F.R. §§ 76.101-110.
214 See 47 U.S.C. § 534(b)(9); see also 47 C.F.R. § 76.1601.
215 See 47 C.F.R. §§ 76.1607, 76.1708.
216 See 47 C.F.R. § 76.1608.
217 See 47 C.F.R. § 76.1609.
218 See 47 U.S.C. § 315; see also 47 C.F.R. §§ 76.205-206, 76.1611, 76.1701.
219 See 47 C.F.R §§ 76.1615, 76.1715.
220 See 47 C.F.R. § 76.213.
221 See 47 C.F.R. §§ 76.1700-10, 1715-16. See also Media Bureau Seeks Comment on Petition for Rulemaking Filed
by the Campaign Legal Center, Common Cause and the Sunlight Foundation Seeking Expansion of Online Public
File Obligations to Cable and Satellite TV Operators, DA 14-1149, 79 Fed. Reg. 51136 (MB 2014) (seeking
comment on a petition for rulemaking to require cable systems and satellite operators to post their public files to the
Commission’s online database).
222 See 47 U.S.C. §§ 531, 541(a)(4)(B).
223 See 47 U.S.C. § 548; see also 47 C.F.R. §§ 76.1001-1002.
224 See 47 U.S.C. § 532; see also 47 C.F.R. §§ 76.701, 76.970-978, 76.1707.
225 See 47 C.F.R. § 76.403 (cable television system report: FCC Form 325); 47 C.F.R. § 76.1610 (change of cable
system operational information (FCC Form 324)); 47 C.F.R. § 76.1801 (cable registration statement (FCC Form
322)).
226 See 47 U.S.C. § 533(a); see also 47 C.F.R. § 27.1202; 47 C.F.R. § 76.501.
227 See 47 U.S.C. § 572; see also 47 C.F.R. §§ 76.505, 76.1404, 76.1616.
228 See 47 U.S.C. § 533(f)(1)(A); 47 C.F.R. § 76.503(a); see also Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir.
2009) (vacating the Commission’s cable horizontal ownership limits).Federal Communications Commission FCC 14-210
35
limits on carriage of vertically integrated programming;229 various franchising requirements;230 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;231 regulation of services, facilities, and equipment, including minimum technical standards and
notification to customers of changes in rates, programming services, or channel positions;232 consumer
protection and customer service;233 consumer electronics equipment compatibility, including prohibition
on scrambling or encrypting the basic service tier;234 support for unidirectional digital cable products
(Plug and Play);235 protection of subscriber privacy;236 transmission of obscene programming;237 and
scrambling of cable channels for non-subscribers.238

77. 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.
239
 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.240
 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.
241
2. Cable Operators Offering OTT Services
78. 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

229 See 47 U.S.C. § 533(f)(1)(B); 47 C.F.R. § 76.504(a); see also Time Warner Entertainment Co. v. FCC, 240 F.3d
1126 (D.C. Cir. 2001) (reversing and remanding the Commission’s cable vertical ownership limits).
230 See 47 U.S.C. §§ 541, 542, 545, 546, 547, 555, 555a; see also 47 C.F.R. §§ 76.41, 76.502.
231 See 47 U.S.C. § 543; see also 47 C.F.R. §§ 76.901-963, 76.980-990, 76.1402, 76.1605-1606, 76.1800, 76.1805.
232 See 47 U.S.C. § 544; see also 47 C.F.R. §§ 76.601, 76.605, 76.609, 76.1602-1604, 76.1618, 76.1704-06,
76.1713, 76.1717.
233 See 47 U.S.C. § 552; 47 C.F.R. §§ 76.309, 76.985, 76.1619.
234 See 47 U.S.C. § 544a; 47 C.F.R. §§ 76.630, 76.1621-1622.
235 See 47 C.F.R. § 76.640.
236 See 47 U.S.C. § 551.
237 See 47 U.S.C. § 559; 47 C.F.R. § 76.702.
238 See 47 U.S.C. § 560.
239 See 47 U.SC. §§ 534, 535; 47 C.F.R. §§ 76.55-62, 76.1614, 76.1617, 76.1709. Cable operators are required to
carry the primary video, accompanying audio, and closed captioning data contained in line 21 of the vertical
blanking interval and, to the extent technically feasible, program-related material carried in the vertical blanking
interval or on subcarriers. See 47 U.S.C. § 534(b)(3)(A); 47 C.F.R. §§ 76.62(e)-(f), 76.606.
240 Implementation of the Cable Television Consumer Protection and Competition Act of 1992: Broadcast Signal
Carriage Issues, Notice of Proposed Rulemaking, 7 FCC Rcd. 8055, 8056, ¶ 4 (1992).
241 We laud private market agreements like the public television digital cable carriage agreement that NCTA and the
Association of Public Television Stations negotiated. See Letter from Diane Burstein, Deputy General Counsel,
NCTA, to Marlene H. Dortch, Secretary, Federal Communications Commission, CS Docket No. 98-120 (filed Feb.
2, 2005). We note, however, that the parties negotiated that agreement in the shadow of the Commission’s must
carry regulations, which would have provided a safeguard to noncommercial broadcasters if those negotiations had
broken down.Federal Communications Commission FCC 14-210
36
to offer video programming services via the Internet.242
 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.
3. DBS Providers Offering OTT Services
79. Some DBS providers offer linear OTT services (and have announced plans to expand
those services) via the Internet.243
 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.
244
 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.245
 We seek comment on this tentative conclusion.
IV. PROCEDURAL MATTERS
80. Authority. This 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.
81. Ex Parte Rules. The proceeding initiated by this Notice of Proposed Rulemaking shall be
treated as “permit-but-disclose” proceedings in accordance with the Commission’s ex parte rules.246


242 See supra n.1.
243 See DishWorld – Watch Live International TV Instantly, http://www.dishworld.com/ (last visited Oct. 22, 2014);
Edmund Lee, Scott Moritz and Alex Sherman, Dish Leads in Race to Offer Online TV to Compete With Cable,
BLOOMBERG, March 15, 2014, available at http://www.bloomberg.com/news/2014-03-04/dish-takes-lead-in-race-tooffer-streaming-tv-to-rival-cable.html.
244 See supra ¶¶ 18-28.
245 See 47 C.F.R. § 25.103 (defining Direct Broadcast Satellite Service as “A radiocommunication service in which
signals transmitted or retransmitted by Broadcasting-Satellite Service space stations in the 12.2-12.7 GHz band are
intended for direct reception by subscribers or the general public. For the purposes of this definition, the term direct
reception includes individual reception and community reception.”). See also 47 U.S.C. § 335(b)(5) (stating that for
purposes of that subsection, “‘provider of direct broadcast satellite service’ means—(i) a licensee for a Ku-band
satellite system under part 100 of title 47 of the Code of Federal Regulations; or (ii) any distributor who controls a
minimum number of channels (as specified by Commission regulation) using a Ku-band fixed service satellite
system for the provision of video programming directly to the home and licensed under part 25 of title 47 of the
Code of Federal Regulations.” The Commission eliminated Part 100 from the rules in 2002; DBS satellite facilities
now are licensed under Part 25 of the rules. Policies and Rules for the Direct Broadcast Satellite Service, 17 FCC
Rcd 11331 (2002).).
246 47 C.F.R. §§ 1.1200 – 1.1216.Federal Communications Commission FCC 14-210
37
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.
82. Filing Requirements. Pursuant to Sections 1.415 and 1.419 of the Commission’s rules,247
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”).248
 Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: http://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 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.
o 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 TWA325,
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.
o 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.
o U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445
12th Street, SW, Washington DC 20554.
83. 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, S.W., CY-A257, Washington, D.C., 20554. These documents will also be
available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat.

247 See id. §§ 1.415, 1.419.
248 See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).Federal Communications Commission FCC 14-210
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84. People with Disabilities. To request materials in accessible formats for people with
disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call
the FCC’s Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
85. Additional Information. For additional information on this proceeding, contact Brendan
Murray mailto:of the Media Bureau, Policy Division, (202) 418-1573.
86. 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.
87. 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.”
V. ORDERING CLAUSES
88. 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 this Notice of Proposed Rulemaking
IS ADOPTED.
89. IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental
Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed
Rulemaking including the Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the
Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
SecretaryFederal Communications Commission FCC 14-210
39
APPENDIX A
Proposed Rules
1. Amend § 76.5 to read as follows:
§ 76.5 Definitions.
* * * * *
(rr) Linear Video. A stream of video programing 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.
2. Amend § 76.64(d) to read as follows:
§ 76.64 Retransmission Consent.
* * * * *
(d) [Reserved]
* * * * *
3. Amend § 76.71(a) to read as follows:
§ 76.71 Scope of application.
(a) The provisions of this subpart shall apply to any corporation, partnership, association, jointstock
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 § 76.5(a), all satellite master antenna
television systems serving 50 or more subscribers, and any multichannel video programming distributor.
For purposes of the provisions of this subpart, a multichannel video programming distributor is an entity
such as, but not limited to, a cable operator, a BRS/EBS provider, a direct broadcast satellite service, a
television receive-only satellite program distributor, or a video dialtone program service provider, who
makes available for purchase, by subscribers or customers, multiple channels of video programming,
whether or not a licensee. 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.
* * * * *
4. Amend § 76.905(d) to read as follows:
§ 76.905 Standards for identification of cable systems subject to effective
competition.
* * * * *Federal Communications Commission FCC 14-210
40
(d) [Reserved]
* * * * *
5. Amend § 76.1000(e) to read as follows:
§ 76.1000 Definitions.
* * * * *
(e) Multichannel video programming distributor. The term “multichannel video programming
distributor” means an entity that falls under the definition provided in Section 76.5(rr) engaged in the
business of making available for purchase, by subscribers or customers, multiple channels of video
programming. Such entities include, but are not limited to, a cable operator, a BRS/EBS provider, a direct
broadcast satellite service, a television receive-only satellite program distributor, and a satellite master
antenna television system operator, 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 Section 76.1507.
* * * * *
6. Amend § 76.1200(b) to read as follows:
§ 76.1200 Definitions.
* * * * *
(b) [Reserved]
* * * * *
7. Amend § 76.1300(d) to read as follows:
§ 76.1300 Definitions.
* * * * *
(d) Multichannel video programming distributor. The term “multichannel video programming
distributor” means an entity that falls under the definition provided in Section 76.5(rr)engaged in the
business of making available for purchase, by subscribers or customers, multiple channels of video
programming. Such entities include, but are not limited to, a cable operator, a BRS/EBS provider, a direct
broadcast satellite service, a television receive-only satellite program distributor, and a satellite master
antenna television system operator, as well as buying groups or agents of all such entities.
* * * * *Federal Communications Commission FCC 14-210
41
APPENDIX B
Initial Regulatory Flexibility Act Analysis
1. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”)1
the
Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) concerning the
possible significant economic impact on small entities by the policies and rules proposed in this Notice of
Proposed Rulemaking (“NPRM”). Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on
the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (“SBA”).2
 In addition, the NPRM and
IRFA (or summaries thereof) will be published in the Federal Register.3
A. Need for, and Objectives of, the Proposed Rule Changes
2. The NPRM seeks comment on a proposed interpretation of the definition of
“multichannel video programming distributor,” or MVPD. The Communications Act defines 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.4
3. Under the Commission’s proposed interpretation of this definition, providers of multiple
streams of pre-scheduled online video (i.e., linear video channels) that are available for purchase will be
considered MVPDs. We believe that this interpretation reflects the changing market for video services as
more subscription linear video is made available online. As an alternative, we seek comment on an
interpretation of the definition of MVPD that would require an entity to also control the physical means—
the “transmission path—that the entity uses to deliver its video programming. We believe that it is
important for the Commission to provide guidance on the definition of MVPD because companies are
experimenting with new business models based on Internet distribution.
4. We seek comment from the public about the effect that this interpretation will have. We
seek comment on the potential benefits of this rule change for online video providers, namely program
access5
and retransmission consent6
protections. We also seek comment on the potential burdens on
online video providers relating to (i) program carriage;7
(ii) the competitive availability of navigation
devices (including the integration ban);8
(iii) good faith negotiation with broadcasters for retransmission
consent;9
(iv) Equal Employment Opportunity (“EEO”);10 (v) closed captioning;11 (vi) video description;12

1
See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 – 612, has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2
See 5 U.S.C. § 603(a).
3
See id.
4
47 U.S.C. § 522(13); see also 47 C.F.R. §§ 76.64(d), 76.71(a), 76.905(d), 76.1000(e), 76.1200(b), 76.1300(d).
5
See 47 U.S.C. § 548; 47 C.F.R. §§ 76.1000-1004. Among other things, these rules require cable-affiliated
programmers to make their programming available to MVPDs on nondiscriminatory rates, terms, and conditions.
6
See 47 U.S.C. § 325(b)(3)(C)(ii); 47 C.F.R. § 76.65. Among other things, these rules require broadcasters to
negotiate in good faith with MVPDs for retransmission consent.
7
See 47 U.S.C. § 536; 47 C.F.R. §§ 76.1300-1302.
8
See 47 U.S.C. § 549; 47 C.F.R. §§ 76.1200-1210.
9
See 47 U.S.C. § 325(b)(3)(C)(iii); 47 C.F.R. § 76.65(b).
10 See 47 C.F.R. §§ 76.71-79, 76.1792, 76.1802.Federal Communications Commission FCC 14-210
42
(vii) access to emergency information;13 (vi) signal leakage;14 (vii) inside wiring;15 and (viii) the loudness
of commercials. We invite comment on any other effects that these rules may have.
B. Legal Basis
5. The proposed action is authorized pursuant to 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.
C. Description and Estimate of the Number of Small Entities to Which the Proposed
Rules Will Apply
6. The RFA directs agencies to provide a description of, and where feasible, an estimate of
the number of small entities that may be affected by the proposed rules, if adopted.16
 The RFA generally
defines the term “small entity” as having the same meaning as the terms “small business,” “small
organization,” and “small governmental jurisdiction.”17
 In addition, the term “small business” has the
same meaning as the term “small business concern” under the Small Business Act.18
 A small business
concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the SBA.19
 Below, we provide a
description of such small entities, as well as an estimate of the number of such small entities, where
feasible.
7. Cable Television Distribution Services. Since 2007, these services have been defined
within the broad economic census category of Wired Telecommunications Carriers, which was developed
for small wireline businesses. This category is defined as follows: “This industry comprises
establishments primarily engaged in operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using
wired telecommunications networks. Transmission facilities may be based on a single technology or a
combination of technologies. Establishments in this industry use the wired telecommunications network
facilities that they operate to provide a variety of services, such as wired telephony services, including
VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet
services.”20
 The SBA has developed a small business size standard for this category, which is: all such
(Continued from previous page)
11 See 47 C.F.R. § 79.1.
12 See 47 C.F.R. § 79.3.
13 See 47 C.F.R. § 79.2.
14 See 47 C.F.R. § 76.610; see also 47 C.F.R. §§ 76.605(a)(12), 76.611, 76.614, 76.1803; 1.1705(a)(1) (FCC Form
320 – Basic Signal Leakage Performance Report).
15 See 47 C.F.R. §§ 76.800-806.
16 5 U.S.C. § 603(b)(3).
17 5 U.S.C. § 601(6).
18 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in 15 U.S.C. § 632).
Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after
consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.” 5 U.S.C. § 601(3).
19 15 U.S.C. § 632.
20 U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” (partial definition),
at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this category are: broadband Internet service
providers (e.g., cable, DSL); local telephone carriers (wired); cable television distribution services; long-distance
telephone carriers (wired); closed circuit television (CCTV) services; VoIP service providers, using own operated
wired telecommunications infrastructure; direct-to-home satellite system (DTH) services; telecommunications
carriers (wired); satellite television distribution systems; and multichannel multipoint distribution services (MMDS).Federal Communications Commission FCC 14-210
43
businesses having 1,500 or fewer employees.21
 Census data for 2007 shows that there were 3,188 that
operated for that entire year.22
 Of this total, 2,940 firms had fewer than 100 employees, and 248 firms
had 100 or more employees.23
 Therefore, under this size standard, we estimate that the majority of such
businesses can be considered small entities.
8. Cable Companies and Systems. The Commission has also developed its own small
business size standards, for the purpose of cable rate regulation. Under the Commission’s rules, a “small
cable company” is one serving 400,000 or fewer subscribers nationwide.24
 Industry data shows that there
were 1,100 cable companies at the end of December 2012.25
 Of this total, all but ten cable operators
nationwide are small under this size standard.26
 In addition, under the Commission’s rate regulation rules,
a “small system” is a cable system serving 15,000 or fewer subscribers.27
 Current Commission records
show 4,945 cable systems nationwide.
28
 Of this total, 4,380 cable systems have less than 20,000
subscribers, and 565 systems have 20,000 or more subscribers, based on the same records. Thus, under
this standard, we estimate that most cable systems are small entities.
9. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as
amended, also contains a size standard for small cable system operators, which is “a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the
United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate
exceed $250,000,000.”29
 There are approximately 56.4 million incumbent cable video subscribers in the
United States today.30
 Accordingly, an operator serving fewer than 564,000 subscribers shall be deemed a

21 13 C.F.R. § 121.201; 2012 NAICS code 517110.
22 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Employment Size of Establishments for the United States: 2007 – 2007
Economic Census,” NAICS code 517110, Table EC0751SSSZ2; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
23 Id.
24 47 C.F.R. § 76.901(e). The Commission determined that this size standard equates approximately to a size
standard of $100 million or less in annual revenues. Implementation of Sections of the Cable Television Consumer
Protection And Competition Act of 1992: Rate Regulation, MM Docket No. 92-266, MM Docket No. 93-215, Sixth
Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408, ¶ 28 (1995).
25 NCTA, Industry Data, Number of Cable Operating Companies (December 2012),
http://www.ncta.com/Statistics.aspx (visited Feb. 21, 2014). Depending upon the number of homes and the size of
the geographic area served, cable operators use one or more cable systems to provide video service. See Annual
Assessment of the Status of Competition in the Market for Delivery of Video Programming, MB Docket No. 12-203,
Fifteenth Report, 28 FCC Rcd 10496, 10505-6, ¶ 24 (2013) (“15th Annual Competition Report”).
26 See SNL Kagan, “Top Cable MSOs – 09/13 Q”; available at
http://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2013Q3&sortcol=subscribersbasic&sortorder=desc.
We note that, when applied to an MVPD operator, under this size standard (i.e., 400,000 or fewer subscribers) all
but 14 MVPD operators would be considered small. See NCTA, Industry Data, Top 25 Multichannel Video Service
Customers (2012), http://www.ncta.com/industry-data (visited Feb. 21, 2014). The Commission applied this size
standard to MVPD operators in its implementation of the CALM Act. See Implementation of the Commercial
Advertisement Loudness Mitigation (CALM) Act, MB Docket No. 11-93, Report and Order, 26 FCC Rcd 17222,
17245-46, ¶ 37 (2011) (“CALM Act Report and Order”) (defining a smaller MVPD operator as one serving 400,000
or fewer subscribers nationwide, as of December 31, 2011).
27 47 C.F.R. § 76.901(c).
28 The number of active, registered cable systems comes from the Commission’s Cable Operations and Licensing
System (COALS) database on Aug. 28, 2013. A cable system is a physical system integrated to a principal headend.
29 47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn. 1-3.
30 See NCTA, Industry Data, Cable Video Customers (2012), http://www.ncta.com/industry-data (visited Feb. 21,
2014).Federal Communications Commission FCC 14-210
44
small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do
not exceed $250 million in the aggregate.31
 Based on available data, we find that all but ten incumbent
cable operators are small entities under this size standard.32
 We note that the Commission neither
requests nor collects information on whether cable system operators are affiliated with entities whose
gross annual revenues exceed $250 million.33
 Although it seems certain that some of these cable system
operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at
this time to estimate with greater precision the number of cable system operators that would qualify as
small cable operators under the definition in the Communications Act.
10. Television Broadcasting. This Economic Census category “comprises establishments
primarily engaged in broadcasting images together with sound. These establishments operate television
broadcasting studios and facilities for the programming and transmission of programs to the public.”34

The SBA has created the following small business size standard for such businesses: those having $38.5
million or less in annual receipts.35
 The 2007 U.S. Census indicates that 808 firms in this category
operated in that year. Of that number, 709 had annual receipts of $25,000,000 or less, and 99 had annual
receipts of more than $25,000,000.36
 Since the Census has no additional classifications on the basis of
which to identify the number of stations whose receipts exceeded $38.5 million in that year, the
Commission concludes that the majority of television stations were small under the applicable SBA size
standard.
11. Apart from the U.S. Census, the Commission has estimated the number of licensed
commercial television stations to be 1,387 stations.37
 Of this total, 1,221 stations (or about 88 percent)
had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc.
Media Access Pro Television Database (BIA) on July 2, 2014. In addition, the Commission has estimated
the number of licensed noncommercial educational (NCE) television stations to be 395.38 NCE stations
are non-profit, and therefore considered to be small entities.39
 Based on these data, we estimate that the
majority of television broadcast stations are small entities.
12. We note, however, that in assessing whether a business concern qualifies as small under
the above definition, business (control) affiliations40 must be included. Our estimate, therefore, likely

31 47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator,
Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001).
32 See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industrydata
(visited Feb. 21, 2014).
33 The Commission does receive such information on a case-by-case basis if a cable operator appeals a local
franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) of
the Commission’s rules. See 47 C.F.R. § 76.901(f).
34 U.S. Census Bureau, 2012 NAICS Definitions, “515120 Television Broadcasting,” at http://www.census.gov./cgibin/sssd/naics/naicsrch.
35 13 C.F.R. § 121.201; 2012 NAICS code 515120.
36 U.S. Census Bureau, Table No. EC0751SSSZ4, Information: Subject Series – Establishment and Firm Size:
Receipts Size of Firms for the United States: 2007 (515120),
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prod
Type=table
37 See Broadcast Station Totals as of June 30, 2014, Press Release (MB rel. July 9, 2014) (Broadcast Station Totals)
at https://apps.fcc.gov/edocs_public/attachmatch/DOC-328096A1.pdf.
38 See Broadcast Station Totals, supra.
39
 See generally 5 U.S.C. §§ 601(4), (6).
40 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other
or a third party or parties controls or has to power to control both.” 13 C.F.R. § 21.103(a)(1).Federal Communications Commission FCC 14-210
45
overstates the number of small entities that might be affected by our action because the revenue figure on
which it is based does not include or aggregate revenues from affiliated companies. In addition, an
element of the definition of “small business” is that the entity not be dominant in its field of operation.
We are unable at this time to define or quantify the criteria that would establish whether a specific
television station is dominant in its field of operation. Accordingly, the estimate of small businesses to
which rules may apply does not exclude any television station from the definition of a small business on
this basis and is therefore possibly over-inclusive to that extent.
13. In addition, the Commission has estimated the number of licensed noncommercial
educational (NCE) television stations to be 396.41
 These stations are non-profit, and therefore considered
to be small entities.42
14. Direct Broadcast Satellite (DBS) Service. DBS service is a nationally distributed
subscription service that delivers video and audio programming via satellite to a small parabolic “dish”
antenna at the subscriber’s location. DBS, by exception, is now included in the SBA’s broad economic
census category, Wired Telecommunications Carriers,43 which was developed for small wireline
businesses. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer
employees.44
 Census data for 2007 shows that there were 3,188 firms that operated for that entire year.45

Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or more employees.46

Therefore, under this size standard, the majority of such businesses can be considered small entities.
However, the data we have available as a basis for estimating the number of such small entities were
gathered under a superseded SBA small business size standard formerly titled “Cable and Other Program
Distribution.” As of 2002, the SBA defined a small Cable and Other Program Distribution provider as
one with $12.5 million or less in annual receipts.47
 Currently, only two entities provide DBS service,
which requires a great investment of capital for operation: DIRECTV and DISH Network.48
 Each
currently offers subscription services. DIRECTV and DISH Network each report annual revenues that
are in excess of the threshold for a small business. Because DBS service requires significant capital, we

41 See Jan. 8, 2014 Broadcast Station Totals Press Release.
42 See generally 5 U.S.C. §§ 601(4), (6).
43 See 13 C.F.R. § 121.201, 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is
defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access
to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission facilities may be based on a single
technology or a combination of technologies. Establishments in this industry use the wired telecommunications
network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP
services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By
exception, establishments providing satellite television distribution services using facilities and infrastructure that
they operate are included in this industry.” (Emphasis added to text relevant to satellite services.) U.S. Census
Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” at http://www.census.gov/cgibin/sssd/naics/naicsrch.
44 13 C.F.R. § 121.201; 2012 NAICS code 517110.
45 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Employment Size of Establishments for the United States: 2007 – 2007
Economic Census,” NAICS code 517110, Table EC0751SSSZ2; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
46 Id.
47 See 13 C.F.R. § 121.201, NAICS code 517510 (2002).
48 See 15th Annual Competition Report, 28 FCC Rcd at 10507, ¶ 27. As of June 2012, DIRECTV is the largest DBS
operator and the second largest MVPD in the United States, serving approximately 19.9 million subscribers. DISH
Network is the second largest DBS operator and the third largest MVPD, serving approximately 14.1 million
subscribers. Id. at 10507, 10546, ¶¶ 27, 110-11. Federal Communications Commission FCC 14-210
46
believe it is unlikely that a small entity as defined under the superseded SBA size standard would have the
financial wherewithal to become a DBS service provider.
15. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable
Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed
transmission paths without using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and
condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are now included in the SBA’s broad economic census category, Wired
Telecommunications Carriers,49 which was developed for small wireline businesses. Under this category,
the SBA deems a wireline business to be small if it has 1,500 or fewer employees.50
 Census data for 2007
shows that there were 3,188 firms that operated for that entire year.51
 Of this total, 2,940 firms had fewer
than 100 employees, and 248 firms had 100 or more employees.52
 Therefore, under this size standard, the
majority of such businesses can be considered small entities.
16. Home Satellite Dish (HSD) Service. HSD or the large dish segment of the satellite
industry is the original satellite-to-home service offered to consumers, and involves the home reception of
signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses
small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of
unscrambled (free) programming and scrambled programming purchased from program packagers that
are licensed to facilitate subscribers’ receipt of video programming. Because HSD provides subscription
services, HSD falls within the SBA-recognized definition of Wired Telecommunications Carriers.53
 The
SBA has developed a small business size standard for this category, which is: all such businesses having
1,500 or fewer employees.54
 Census data for 2007 shows that there were 3,188 firms that operated for
that entire year.55
 Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or
more employees.56
 Therefore, under this size standard, the majority of such businesses can be considered
small entities.
17. Open Video Systems. The open video system (OVS) framework was established in 1996,
and is one of four statutorily recognized options for the provision of video programming services by local
exchange carriers.57 The OVS framework provides opportunities for the distribution of video
programming other than through cable systems. Because OVS operators provide subscription services,58

49 13 C.F.R. § 121.201; 2012 NAICS code 517110.
50 See id.
51 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Employment Size of Establishments for the United States: 2007 – 2007
Economic Census,” NAICS code 517110, Table EC0751SSSZ2; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
52 Id.
53 13 C.F.R. § 121.201; 2012 NAICS code 517110.
54 See id.
55 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Employment Size of Establishments for the United States: 2007 – 2007
Economic Census,” NAICS code 517110, Table EC0751SSSZ2; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
56 Id.
57 47 U.S.C. § 571(a)(3)-(4); see Implementation of Section 19 of the 1992 Cable Act and Annual Assessment of the
Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 06-189, Thirteenth
Report, 24 FCC Rcd 542, 606, ¶ 135 (2009) (“13
th Annual Competition Report”).
58 See 47 U.S.C. § 573.Federal Communications Commission FCC 14-210
47
OVS falls within the SBA small business size standard covering cable services, which is “Wired
Telecommunications Carriers.”59 The SBA has developed a small business size standard for this
category, which is: all such businesses having 1,500 or fewer employees.60
 Census data for 2007 shows
that there were 3,188 firms that operated for that entire year.61
 Of this total, 2,940 firms had fewer than
100 employees, and 248 firms had 100 or more employees.62
 Therefore, under this size standard, we
estimate that the majority of these businesses can be considered small entities. In addition, we note that
the Commission has certified some OVS operators, with some now providing service.63 Broadband
service providers (BSPs) are currently the only significant holders of OVS certifications or local OVS
franchises.64 The Commission does not have financial or employment information regarding the other
entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some
of the OVS operators may qualify as small entities.
18. Cable and Other Subscription Programming. The Census Bureau defines this category
as follows: “This industry comprises establishments primarily engaged in operating studios and facilities
for the broadcasting of programs on a subscription or fee basis. . . . These establishments produce
programming in their own facilities or acquire programming from external sources. The programming
material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for
transmission to viewers.”65
 The SBA has developed a small business size standard for this category,
which is: all such businesses having $38.5 million dollars or less in annual revenues.66
 Census data for
2007 show that there were 396 firms that operated for that entire year.67
 Of that number, 349 operated
with annual revenues of $24,999,999 dollars or less.68
 Forty-seven (47) operated with annual revenues of

59 See 13 C.F.R. § 121.201, 2012 NAICS code 517110. This category of Wired Telecommunications Carriers is
defined in part as follows: “This industry comprises establishments primarily engaged in operating and/or providing
access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission facilities may be based on a single
technology or a combination of technologies. Establishments in this industry use the wired telecommunications
network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP
services; wired (cable) audio and video programming distribution; and wired broadband Internet services.” U.S.
Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” at
http://www.census.gov/cgi-bin/sssd/naics/naicsrch.
60 13 C.F.R. § 121.201; 2012 NAICS code 517110.
61 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Employment Size of Establishments for the United States: 2007 – 2007
Economic Census,” NAICS code 517110, Table EC0751SSSZ2; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
62 Id.
63 A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
64 See 13th Annual Competition Report, 24 FCC Rcd at 606-07, ¶ 135. BSPs are newer businesses that are building
state-of-the-art, facilities-based networks to provide video, voice, and data services over a single network.
65 U.S. Census Bureau, 2012 NAICS Definitions, “515210 Cable and Other Subscription Programming,” at
http://www.census.gov/cgi-bin/sssd/naics/naicsrch.
66 13 C.F.R. § 121.201; 2014 NAICS code 515210.
67 See U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Receipts Size of Establishments for the United States: 2007 – 2007 Economic
Census,” NAICS code 515210, Table EC0751SSSZ2; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
68 Id.Federal Communications Commission FCC 14-210
48
$25,000,000 or greater69
 Thus, under this size standard, the majority of such businesses can be considered
small entities.
19. Motion Picture and Video Production. These entities may be indirectly affected by our
action. The Census Bureau defines this category as follows: “This industry comprises establishments
primarily engaged in producing, or producing and distributing motion pictures, videos, television
programs, or television commercials.”70
 We note that establishments in this category may be engaged in
various industries, including cable programming. The SBA has developed a small business size standard
for this category, which is: all such businesses having $32.5 million dollars or less in annual revenues.71

Census data for 2007 show that there were 9,095 firms that that operated that year.72
 Of that number,
8,995 had annual receipts of $24,999,999 or less, and 100 had annual receipts ranging from not less than
$25,000,000 to $100,000,000 or more.73
 Thus, under this size standard, the majority of such businesses
can be considered small entities.
20. Motion Picture and Video Distribution. The Census Bureau defines this category as
follows: “This industry comprises establishments primarily engaged in acquiring distribution rights and
distributing film and video productions to motion picture theaters, television networks and stations, and
exhibitors.”74
 We note that establishments in this category may be engaged in various industries,
including cable programming. The SBA has developed a small business size standard for this category,
which is: all such businesses having $32 million dollars or less in annual revenues.75
 Census data for
2007 show that there were 450 firms that operated for that entire year.
76
 Of that number, 434 had annual
receipts of $24,999,999 or less, and 16 had annual receipts ranging from not less than $25,000,000 to
$100,000,000 or more.77
 Thus, under this size standard, the majority of such businesses can be
considered small entities.
21. Internet Publishing and Broadcasting and Web Search Portals. The Census Bureau
defines this category as follows: “This industry comprises establishments primarily engaged in (1)
publishing and/or broadcasting content on the Internet exclusively or (2) operating Web sites that use a
search engine to generate and maintain extensive databases of Internet addresses and content in an easily
searchable format (and known as Web search portals). The publishing and broadcasting establishments in
this industry do not provide traditional (non-Internet) versions of the content that they publish or
broadcast. They provide textual, audio, and/or video content of general or specific interest on the Internet
exclusively. Establishments known as Web search portals often provide additional Internet services, such

69 Id.
70 U.S. Census Bureau, 2012 NAICS Definitions, NAICS Code 512110, at http://www.census.gov/cgibin/sssd/naics/naicsrch.
71 13 C.F.R § 121.201, 2012 NAICS code 512110.
72 See U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Receipts Size of Firms for the United States: 2007 – 2007 Economic Census,”
NAICS code 512110, Table EC0751SSSZ4; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
73 See id.
74 U.S. Census Bureau, 2012 NAICS Definitions, NAICS Code 512120, at http://www.census.gov/cgibin/sssd/naics/naicsrch.
75 13 C.F.R. § 121.201, 2012 NAICS code 512120.
76 See U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Receipts Size of Firms for the United States: 2007 – 2007 Economic Census,”
NAICS code 512120, Table EC0751SSSZ4; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
77 See id.Federal Communications Commission FCC 14-210
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as e-mail, connections to other web sites, auctions, news, and other limited content, and serve as a home
base for Internet users.”78
 The SBA has developed a small business size standard for this category, which
is: all such businesses having 500 or fewer employees.79
 Census data for 2007 shows that there were
2,705 firms that operated for the entire year.80
 Of this total, 2,682 firms had fewer than 500 employees,
and 13 firms had between 500 and 999 employees.81
 Therefore, under this size standard, the majority of
such businesses can be considered small.
D. Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
22. The NPRM proposes to expand the scope of entities that would be subject to
recordkeeping requirements. The NPRM seeks comment on the Commission’s proposal to interpret the
definition of “multichannel video programming distributor” to include online linear subscription video
providers. If the Commission adopts its proposed interpretation, online linear subscription video
providers will be required to follow the Commission’s regulations that apply to MVPDs, which include
recordkeeping requirements. The Commission seeks comment on the effect that this will have on online
linear subscription video providers.
23. Specifically, small entities that are deemed MVPDs would be subject to seven main areas
of regulation as MVPDs. The first area is program carriage, which prohibits MVPDs from (i) requiring a
financial interest in a video programming vendor’s program service as a condition for carriage;82 (ii)
coercing a video programming vendor to provide, or retaliating against a vendor for failing to provide,
exclusive rights as a condition of carriage; 83 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.84 The
second area is competitive availability of navigation devices, which requires MVPDs to allow consumers
to attach non-harmful devices to their networks, separate security from their receiver devices, and explain
to interested parties how to make compatible devices.85 The third area is retransmission consent, which
requires MVPDs to negotiate in good faith with broadcasters for carriage.86 The fourth area is Equal
Employment Opportunity (“EEO”), which (i) require MVPDs to provide equal opportunity in
employment to all qualified persons and prohibit MVPDs from discriminating in employment based on

78 U.S. Census Bureau, 2012 NAICS Definitions, “519130 Internet Publishing and Broadcasting and Web Search
Portals” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this category are: Internet book
publishers, Internet sports sites, Internet entertainment sites, Internet video broadcast sites, Internet game sites,
Internet news publishers, Internet periodical publishers, Internet radio stations, Internet search portals, Web search
portals, and Internet search web sites.
79 13 C.F.R. § 121.201; NAICS code 519130.
80 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information:
Subject Series – Estab and Firm Size: Employment Size of Firms for the United States: 2007 – 2007 Economic
Census,” NAICS code 519130, Table EC0751SSSZ5; available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
81 Id.
82 See 47 C.F.R. § 76.1301(a); see also 47 U.S.C. § 536(a)(1).
83 See 47 C.F.R. § 76.1301(b); see also 47 U.S.C. § 536(a)(2).
84 See 47 U.S.C. § 536; 47 C.F.R. §§ 76.1300-1302.
85 See 47 U.S.C. § 549; 47 C.F.R. §§ 76.1200-1210. Per Section 106 of the STELA Reauthorization Act of 2014,
Pub. L. No. 113-200, the requirement that MVPDs rely on separate security in the devices that they provide to
consumers terminates on December 4, 2015.
86 See 47 U.S.C. § 325(b)(3)(C)(iii); 47 C.F.R. § 76.65(b).Federal Communications Commission FCC 14-210
50
race, color, religion, national origin, age, or sex;87 (ii) require MVPDs to engage in certain outreach and
recruitment activities;88 and (iii) require MVPDs to comply with certain reporting and recordkeeping
requirements.89
 The fifth area is closed captioning, which 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.”90 The sixth area video description and access to emergency
information, which require MVPDs to make programming and emergency information accessible to the
blind and visually impaired.91 And finally, MVPDs are required to meet certain standards to mitigate the
loudness of commercials.92
E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and
Significant Alternatives Considered
24. The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include the following four alternatives (among others): (1)
the establishment of differing compliance or reporting requirements or timetables that take into account
the resources available to small entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather
than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small
entities.93
25. The NPRM proposes to interpret the term MVPD to include all multichannel,
subscription linear video providers, including Internet-based providers. The MVPD seeks comment on
whether to phase in application of its rules to online linear subscription video providers, or whether to
waive the rules in certain instances. The Commission has never proposed an interpretation of the term
MVPD, and now seeks comment on the effect of the proposed interpretation, specifically whether the
interpretation will burden online linear subscription video providers without a corresponding public
interest benefit. The Commission proposes this interpretation, however, because it believes that it will
provide small entities with access to programming that will allow those entities to compete with larger
incumbent providers. The Commission understands that with MVPD status comes certain regulatory
obligations (as summarized in Section D above), and the Commission seeks comment on whether the
regulatory privileges—i.e., access to broadcast and cable-affiliated programming—outweigh those
obligations. The Commission also seeks comment on whether the interpretation will have the desired
effect of increasing video competition. To limit the burdens on small entities, the Commission also seeks
comment on whether to waive regulations to the extent allowable under the Communications Act. And
the Commission invites alternative interpretations of the term MVPD that would limit burdens on small
entities.
F. Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rule
None.

87 See 47 U.S.C. § 554(b); 47 C.F.R. § 76.73(a); see also 47 U.S.C. § 554(c); 47 C.F.R. § 76.73(b).
88 See 47 C.F.R. § 76.75(a)-(b), (e).
89 See 47 C.F.R. §§ 76.75(c); 76.77(a), (d); 76.1702; 76.1802.
90 47 C.F.R. § 79.1; see also 47 U.S.C. § 613.
91 See 47 C.F.R. §§ 79.2, 79.3.
92 See 47 C.F.R. § 76.607; Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act,
Report and Order, 26 FCC Rcd 17222 (2011).
93 5 U.S.C. § 603(c)(1)-(c)(4)Federal Communications Commission FCC 14-210
51
STATEMENT OF
CHAIRMAN TOM WHEELER
Re: Promoting Innovation and Competition in the Provision of Multichannel Video Programming
Distribution Services, MB Docket No. 14-261.
Today, we begin a process to expand Internet video competition with cable and satellite services.
Our proposal will mean more alternatives for consumers beyond the traditional cable or satellite bundle,
including giving consumers more options to buy the programming they want. When digital technology
made video simply zeroes and ones, it opened up the opportunity for new Internet-based competition to
cable and satellite services. Yet efforts by new entrants to develop new video services have faltered
because they could not get access to programming content that was owned by cable networks or
broadcasters.
With this Notice of Proposed Rulemaking, the Commission moves to update the Commission’s
rules to give video providers who operate over the Internet – or any other method of transmission – the
same access to programming that cable and satellite operators have. Big company control over access to
programming should not keep programs from being available on the Internet. Today, we propose to break
that bottleneck.
More specifically, we propose to update our interpretation of the definition of a multichannel
video programming distributor (MVPD) to make it technology-neutral. Video is no longer tied to a
certain transmission technology, so our interpretation of MVPD should not be tied to transmission
facilities. Under our proposal, any providers that make multiple linear streams of video programming
available for purchase would be considered MVPDs, regardless of the technology used to deliver the
programming. The effect of this change will be to improve the availability of programming that over-thetop
providers need and consumers want.
History has shown us how such a change can expand consumer choice. Back in 1992, Congress
said that DBS competitors should be able to negotiate in good faith for video content, even if it is owned
by cable companies and broadcasters. Greater access to high-demand content spurred the growth of the
satellite video business in the 1990s. We propose to do the same thing for over-the-top video providers
who deliver content, not via cable or satellite, but via the Internet.
By facilitating access to such content, we expect Internet-based linear programming services to
develop as a competitor to cable and satellite. Consumers should have more opportunities to buy the
channels they want instead of having to pay for channels they don’t want.
Our proposals will also help stimulate additional broadband deployment. An updated definition
of MVPD would permit a new broadband competitor to offer customers the ability to reach a variety of
over-the-top video packages, without having to enter the video business itself.
This NPRM marks the beginning, not the end of the process. While it proposes to interpret the
term MVPD to encompass distributors of multiple linear video programming streams, including Internetbased
services, it also asks for comment on an alternative interpretation that would require an MVPD to
have control over a transmission path. The NPRM also asks for comment on:
o How each interpretation would impact MVPDs, consumers, and content owners, and how
each would promote competition and broadband adoption;
o How the Commission should apply its retransmission consent “good faith” negotiation
rules with respect to Internet-based MVPDs to protect local broadcasters; and
o Whether these proposals would affect the regulatory status of IP-delivered video services
by cable operators and DBS providers.Federal Communications Commission FCC 14-210
52
This proposal is a big win for consumers and part of the Commission’s broader efforts to speed
the transition to all-IP networks in a way that serves the public interest – enabling innovation, while
preserving core values like competition and consumer choice. Federal Communications Commission FCC 14-210
53
STATEMENT OF
COMMISSIONER MIGNON L. CLYBURN
Re: Promoting Innovation and Competition in the Provision of Multichannel Video Programming
Distribution Services, MB Docket No. 14-261.
Change is both constant and continuous.
As the media landscape evolves to reflect consumer demands and innovation, so too must our
policies and regulatory regime. This has been a constant refrain for the FCC, as we seek to keep pace
with the invariable changes in the global communications market.
Our tastes, fashions, viewpoints and values are influenced by content transferred over our
television, radio, desktop, or handheld devices, and for those providers of content, this presents
opportunity and obstacles, and holds both risk and reward.
Sound regulation typically requires a careful balancing of competing interests. In this context, it
means our goals should be to define “multichannel video programming distributor” as broadly as possible
to accommodate a new set of choices and offerings for consumers, while concurrently opening the avenue
for innovation and new players. Multiple channels of video programming, including linear video
providers who may not own their own facilities, should be included. We also want to insure that nascent,
internet- based, services are not given competitive advantages over established MVPDs, who have welldefined
obligations under the law.
With this vote, I believe we have adequately balanced these interests, by accomplishing three
noteworthy public interest objectives: First, and foremost, we seek to provide more choice for consumers
– always a positive goal. Second, we create a path for new entrants by encouraging a level playing-field
of competition in a rich market. Third, we modernize our regulations so they comport with the new
realities of a dynamic industry, and remain relevant in a competitive market as a result.
As the video marketplace continues to grow in ways, perhaps, unforeseen, I believe today’s
decision to expand the definition of MVPD will prove to be prescient.Federal Communications Commission FCC 14-210
54
STATEMENT OF
COMMISSIONER JESSICA ROSENWORCEL
Re: Promoting Innovation and Competition in the Provision of Multichannel Video Programming
Distribution Services, MB Docket No. 14-261.
The future of watching video does not look like the past. That’s because over the next few years,
television will change more than it has over the last several decades.
The way we watch will change—where we watch, when we watch, and how we watch.
Families huddling together in one room basking in the glow of a single screen will give way to gatherings
with many screens and multiple programs. I know. It is already happening with my family in my
home—and it is surely happening in countless others just like it, all across the country.
While online video has arrived, it is still in the early stages of development. The world’s largest
media companies and smallest upstarts are experimenting with innovative programming, business models,
and pricing. As a result, the video market is evolving at a breathtaking pace, driven by both new
technology and changing consumer expectations.
At the Commission we have an obligation to promote competition in the delivery of video
services. We have the authority to update our rules to reflect the fact that video services are being offered
over new platforms. We have the authority to interpret the statutory term multichannel video
programming distributor (MVPD) to include providers of multiple streams of linear, over-the-top
television. But I believe acknowledging authority is only the start of our inquiry. We also need to
consider if we should alter our rules—and how. That’s because our answer will impact the kind of video
offerings that come to the market, the speed with which they arrive, and the prices consumers pay.
For this reason, I want to thank Chairman Wheeler and my colleagues for accommodating my
request that this rulemaking seek comment on allowing, under certain circumstances, the ability to elect
MVPD status. New service types are emerging fast—faster than any rulemaking process at this agency.
What new video models succeed, what degree of self-curated viewing they enable, and what prices
consumers are willing to pay are still up for grabs. If this kind of election can be administered easily, new
providers would be able to avoid the legal conundrum involved in determining the regulatory status of
novel services, seeking regulatory exemption, or pursuing a waiver of our rules before launching in the
market. Moreover, this could be an elegant compromise for new services—between those who believe
we should steer clear of policies for Internet-distributed video and those who believe clear rules are
essential to get their service off the ground.
I look forward to the record that develops in response to the many questions in this rulemaking.
But more than that, I look forward to the wide range of innovative video services that are developing.
The future of watching—anytime and anywhere—is bound to be exciting. Federal Communications Commission FCC 14-210
55
CONCURRING STATEMENT OF
COMMISSIONER AJIT PAI
Re: Promoting Innovation and Competition in the Provision of Multichannel Video Programming
Distribution Service, MB Docket No. 14-261.
The video marketplace is changing, and changing fast. Internet-based video distribution—a
flickering hope at the dawn of the Internet age—is a real and growing phenomenon. New entrants are
cutting new paths, while established competitors are feeling pressure to adapt their business models.
More than ever before, consumers are in the driver’s seat when it comes to video content.
In evolving markets like these, the government should be hesitant to extend the outdated
regulations and classifications of old. It’s for this reason that I can’t vote to approve this Notice of
Proposed Rulemaking. In my view, the Commission’s fundamental proposal—that certain Internet-based
distributors of video programming should be regulated as multichannel video programming distributors
(MVPDs), a mouthful of a term older than Internet video itself—is premature. And the legal analysis
contained in the Notice is heavily slanted to support that result.
To be sure, this proposal is being packaged as a way to increase video competition. But given
the dramatic, organic explosion in online video content over the last few years, I have my doubts as to
whether additional regulation in this space is necessary. Indeed, I fear that it could impede continued
innovation. I am also worried that this proposal will pave the way for more comprehensive regulation of
Internet-based services.
Nonetheless, I am voting to concur for two reasons. First, I agree that it is time for the
Commission to resolve the question of whether Internet-based distributors of video programming can be
MVPDs, an issue that has been pending at the Commission for over four years. And second, the Notice
has improved significantly since it was first circulated, as a result of changes that Commissioner O’Rielly,
Commissioner Rosenworcel, and I suggested.
Among other things, the Notice now tentatively concludes that programmers’ websites should be
shielded from additional regulation. It also tentatively concludes that there should be regulatory parity
between cable operators offering video programming over the Internet and other entities doing the same.
Additionally, it asks in a more forthright manner about the interplay between the Commission’s
regulatory decisions and decisions that will need to be made independently by the U.S. Copyright Office.
In particular, if the Commission were to decide that Internet-based distributors of video programming are
MVPDs, subjecting broadcasters to the obligation to negotiate in good faith with them regarding
retransmission consent, what would it mean in practice if the Copyright Office maintained its position
that such Internet-based distributors do not qualify for the compulsory license? Would that be a workable
regulatory scheme? While I had hoped to get public input on other questions as well,1
doing so with
respect to the issues mentioned above is significant.
I look forward to reviewing the record compiled in response to this Notice and to working
collaboratively with my colleagues to create a regulatory framework that preserves for many years more
what millions of consumers view as a golden age of video.

1
For example, we should have asked whether the Commission’s proposal could require us to regulate Internet
pornography. This is obviously an uncomfortable question, but it won’t vanish through omission.Federal Communications Commission FCC 14-210
56
CONCURRING STATEMENT OF
COMMISSIONER MICHAEL O’RIELLY
Re: Promoting Innovation and Competition in the Provision of Multichannel Video Programming
Distribution Services, MB Docket No. 14-261.
I marvel at and embrace what the Internet and the many innovative programmers and designers
have been able to bring to the world. Over the last 20 years or so, the Internet has revolutionized all
communication capabilities. It is the ultimate disruptive force. Nowhere is this more evident than in the
offering of video programming. According to industry experts, video already accounts for two-thirds of
U.S. Internet traffic today and is estimated to increase to approximately 80 percent in just three years.1

Once the domain of a few select providers, the video marketplace is changing right before our very eyes.
Business models are adapting on the fly, and a robust video offering on the Internet is becoming more of a
necessity for those companies seeking to compete in the years ahead.
With all of this dynamism in the online video marketplace, it makes this item particularly
puzzling. While I can appreciate that the Commission may be trying to be forward looking, this item
misses the mark. The Internet—and online video in particular—has grown to where it is today outside of
our regulatory clutches, and the FCC trying to jump into this space now, especially without clear direction
provided by the Congress, is highly questionable. As a government agency with little to no authority over
the Internet, the best thing that the Commission can do is not get in the way.
Although I am amenable to seeking comment on these ideas and will concur to this notice, I am
unlikely to support a future order based on the central proposal set forth in today’s item. Specifically, it
sets up a regime to treat an over-the-top (OTT) video programming provider as a Multichannel Video
Programming Distributor (MVPD) if it is offering multiple streams of prescheduled video programming.
I am concerned that the Commission’s actions—either intentionally or unintentionally—may skew the
marketplace in a harmful way. For instance, OTT video providers may seek to follow this model, if
adopted, in order to take advantage of some of the perceived benefits instead of pursuing other more
promising or innovative offerings that the market and consumers may prefer. Or, will some entities
decide not to pursue a linear online offering—or worse remove content from the Internet—because of
regulation? The structure proposed could have significant unintended consequences on this nascent
industry still trying to define itself in the immediate term and on the entire video industry in the years to
come. So why are we doing this?
A review of the supposed benefits of the item results in a short and undistinguished list. For
instance, declaring an OTT video offering as an MVPD would allow it to take advantage of the
Commission’s Program Access and Retransmission Consent Rules. These prevent certain entities from
improperly withholding cable-affiliated programming from competitors and require that negotiations
between parties for broadcast programming be in good faith. These rules, however, do not guarantee a
successful outcome, which is determined by private marketplace negotiations; they only bring parties to
the table. But, OTT video providers are doing more than just talking these days. You only have to look
at the deals cut by Sony, Dish and others to see that negotiations can commence and agreements can be
struck without FCC involvement.
It has also been asserted by some people that, as a response to Commission action, the Registrar
of Copyrights at the United States Copyright Office could extend compulsory copyright to online video
programmers wishing to transmit broadcast signals. My indications are that the Copyright Office is not
poised to act nor seeking our advice or input. Moreover, having spent some time over the years working

1 Cisco, VNI Forecast Highlights, United States – 2018 Forecast Highlights, Internet Video,
http://www.cisco.com/web/solutions/sp/vni/vni_forecast_highlights/index.html (last visited Dec. 18, 2014).Federal Communications Commission FCC 14-210
57
on potential amendments to the Copyright Act, I am not sure how much flexibility the Registrar would
have to deem an MVPD potentially covered by this item as eligible for a compulsory copyright license.
In fact, the U.S. District Court for the Southern District of New York has stated that being like a cable
system does not make it a cable system for purposes of a compulsory copyright license.2
 Likewise, the
statute seems to be fairly clear in its use of the terms “cable system” and “satellite carrier,” as opposed to
“MVPD.”3

While there may be a few tangible upsides to this item, there are also potential downsides. And
this regime is not permissive; if an OTT meets the criteria, the Commission would presumably declare the
OTT to be an MVPD—even if the OTT doesn’t want such a declaration. I hope to engage with
stakeholders going forward to understand how these burdens could impact current and future business
models or plans.
Moreover, I am deeply concerned by the suggestion that a cable-affiliated network could be
required to obtain the online rights to all of its programs, which it may not own today, to make them
available to OTT MVPDs. This suggested mandate would occur even if the cable provider didn’t want
the rights for its own business purposes. In effect, we would be forcing a company to negotiate and
purchase copyrights for purposes of selling a more complete video package to an OTT MVPD. Really?
Not only is this beyond offensive, it may just violate the U.S. Constitution. It is extremely unlikely that I
would support such a requirement in any final version, and it may taint my view of an entire item.

Finally, and maybe most importantly, I am extremely troubled that the Commission may be
headed down a path to capture OTT video providers within Title VI of the Communications Act.
Although it would not subject such providers to the full panoply of requirements, shoehorning Internet
video providers—the quintessential edge providers—into a framework that many people, including those
in leadership in Congress, have deemed in need of review or overhaul is just plain wrong. As I have
previously stated, this effort, combined with a number of other items seeking to subsume Internet
offerings into Title II, would seem to leave little of the Internet free from the grasp of the
Communications Act, a law not written for the Internet age. How is it that some edge providers fail to see
that the Commission will seek to extend its authority to their business models or plans?
Although I have serious concerns about the direction in which the Commission is headed, I would
like to thank the Chairman and my fellow colleagues for working together to get this item to a better
place. A number of harsher proposals, such as mandatory carriage requirements, were removed or
modified at my request. I would also like to recognize the Media Bureau staff who spent many late nights
working on this notice.

2
See American Broadcasting Companies, Inc. et el. V. Aereo, Inc., Nos. 12–cv–1540, 12–cv–1543, slip op.
(S.D.N.Y. Oct. 23, 2014).
3
See 17 U.S.C. §§ 111, 119, 122.