Over the Top Regulation

Lee McKnight Syracuse University iSchool

Discussion at Regulating the Evolving Broadband Ecosystem

FCC/AEI/UNL Conference, FCC, September 11, 2014

Dynamic (ad hoc) Hybrid Heterogeneous Networks: Non-Software Defined Network (SDN)/ Network Function Virtualization Domain SDN/ NFV-oriented Domain

Courtesy of Tayeb Ben Meriem, Orange WiGiT Open Specs v0.3 10.24.2013

OMA Open Mobile Alliance

TM Forum ECLC Workplace as a Service WPaaS/WiGiT Open Spec v0.2 Cloudband™ provides Platform and Infrastructure as a Service (PaaS + IaaS) Gridstream™ is a WPaaS application delivered across Cloudband™

Select WPaaS Reference Architecture Open APIs highlighted in Red.

(Courtesy of SU WiGiT Lab and Virtual Clarity, 2012)

OTT Crimping Cable’s Style?

Justin (Gus) Hurwitz University of Nebraska College of Law September 11, 2014 The question: What is “cable”?

 Is OTT video “cable”?  Copyright Act:  Section 111 compulsory license  Local-into-local retransmission is basically free!  Applies to program

 Title VI  If OTT video is an MVPD, Title VI kicks in  Retrans consent, must-carry  Whole bevy of other regulations  Applies to signal (which is not otherwise protected!)

Sept 11, 2014 OTT as Cable 2 The question: What is “cable”?

 Why do we care?

 In Aereo, Court said OTT video is “cable like”  It is “for all practical purposes a traditional cable system”  FCC has been struggling with whether OTT video is subject to MVPD rules  Sky Angel petition  © Office has struggled (or not!) with classification, too

 The future version of the question:  What about Netflix? Youtube? TV Everywhere? Sony/Viacom/Dish? CDNs? Facebook?

Sept 11, 2014 OTT as Cable 3 The language

 17 USC 111(f):

A “cable system” is a facility, located in any State … that … receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the FCC, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. …

Sept 11, 2014 OTT as Cable 4 The language

 47 USC 602: (7) the term “cable system” means 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 title II of this Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with section 653 of this title; or (E) any facilities of any electric utility used solely for operating its electric utility systems;

Sept 11, 2014 OTT as Cable 5 The language

Sept 11, 2014 OTT as Cable 6 The language

 47 USC 602: HOWEVER … (7) the term “cable system” means 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 title II of this Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with section 653 of this title; or (E) any facilities of any electric utility used solely for operating its electric utility systems;

Sept 11, 2014 OTT as Cable 7 The language

 47 USC 602: BUT!

(13) the term “multichannel video programming distributor” means 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;

Sept 11, 2014 OTT as Cable 8 The language

 47 USC 602: BUT!

Sept 11, 2014 OTT as Cable 9 The language

 47 USC 602: BUT!

Sept 11, 2014 OTT as Cable 10 The language

 47 USC 602: BUT!

 (4) the terms “cable channel” or “channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation);  (20) the term “video programming” means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

Sept 11, 2014 OTT as Cable 11 The language: What does it mean?

 Who decides?  The agencies (Chevron)  Probably … (Does © Office get Chevron deference?)

 What Have they said?  FCC  Open proceeding (started with 2010 Sky Angel petition)  Hasn’t said anything … yet (Like OTT VoIP?)  What’s the meaning/importance of “channel” in MVPD def?  © Office …

Sept 11, 2014 OTT as Cable 12 The language: What does it mean?

 © Office has said that OTT video is not cable

 Ivi decision: gave three reasons  OTT providers don’t have “facilities”  E.g., they don’t own the “cables” used to distribute video  OTT isn’t geographically limited  Fundamental conflict with the statutory structure  Statutory history/structure  When satellite TV came around, Congress made a major revision to the Copyright Act (adding s.119) – didn’t just apply s.111

 Aereo remand Q: “We need to agree with FCC”

Sept 11, 2014 OTT as Cable 13 The language: What does it mean?

 What else has the © Office said?  1992 Satellite & MMDS Rule: MMDS not cable  Focus is meaning of “wires, cables or other communications channels”  FCC Mass Media Bureau disagreed with classification  © Office accepts without question that MMDS is a “facility”  1994: Congress says MMDS is cable  i.e., “© office, you were wrong!”  Simply added MMDS to Section 111  cf. satellite: Congress added entire new Section 119  Query: is OTT more like MMDS or satellite?  1996 OVS NOI: © Office: “we can disagree with FCC”

Sept 11, 2014 OTT as Cable 14 The language: What does it mean?

 What else has the © Office said?  1992 Satellite & MMDS Rule: MMDS not cable  Focused on meaning of “wires, cables or other comm’s channels”  FCC Mass Media Bureau disagreed with classification MMDS: Multichannel Multipoint Distribution Service  © Office accepts without question that MMDS is a facility (e.g., microwave-based “wireless cable”)  1994: Congress says MMDS is cable  i.e., “© office, you were wrong!”  Simply added MMDS to Section 111  cf. satellite: Congress added entire new Section 119  Query: is OTT more like MMDS or satellite?  1996 OVS NOI: © Office: “we can disagree with FCC”

Sept 11, 2014 OTT as Cable 15 The language: What does it mean?

Sept 11, 2014 OTT as Cable 16 The language: What does it mean?

 Does © Office’s prior determination still hold?  “OTT lacks facilities” argument?  Was always weak – and is contrary to 1992 order

 “Geographically unlimited” argument?  OTT can be geographically limited – see, e.g., Aereo

 “Statutory structure” argument?  If geographic limits, OTT more like MMDS than sat’lite

Sept 11, 2014 OTT as Cable 17 Conclusions

 Two agencies, two statutes, many meanings …

 The statutory language is a mess  Probably both 17 USC and 47 USC can treat OTT at cable  But probably both are within discretion of agency  Surprisingly tech-specific  e.g., definition of “channel” refers both to “portion of electromagnetic spectrum” and use in “cable system”  Analogue to Title II?  Are “telecommunications” akin to “channels”?  Circularity of “telecom” and “channel” definitions

Sept 11, 2014 OTT as Cable 18 Conclusions

 Can packet video be MVPD? Switched video?  If yes, can OTT not be MVPD?

 If OTT is not MVPD, what rules is it subject to?  To date, OTTs have tried to benefit from regulations …  E.g., to get access to content

 But OTTs are starting to operate more like MVPDs  What rules (if any) are they subject to?

Sept 11, 2014 OTT as Cable 19