Different Visions of Video Market Regulation Abound in Video Competition Comments

Video continues to be a money loser for many WTA members, despite their investments in their rural broadband networks to carry it, it said. Members cannot get video programming "at affordable prices and on reasonable terms," amid the expense of retransmission consent and satellite programming distribution rights, as well as tiering and tying conditions, the association said. To make programming more equitably affordable, WTA presented a laundry list of regulatory recommendations: prohibiting "take-it-or-leave-it" negotiating tactics as per se violations of good faith negotiations; amending the definition of “buying group” to extend program access protections to small MVPDs using master agreements; prohibiting the tying of programming "without providing a viable economic alternative to carrying just the primary/desired signal;" letting rural MVPDs negotiate for retrans consent with broadcast stations in a neighboring designated market areas when its customers do not find the assigned designated market area’s local programming to be relevant; prohibiting mandatory nondisclosure and confidentiality provisions in retrans consent agreements; prohibiting or limiting national network involvement in retrans consent negotiations; prohibiting reverse compensation payments that lead to big increases in retrans consent fees; prohibiting broadcaster and cable-affiliated programmers from charging per-subscriber fees for broadband customers not subscribing to an MVPDs video services; prohibiting broadcasters from blocking access in retrans consent disputes to content that is otherwise available free online; and prohibiting broadcasters from charging MVPDs per-subscriber fees for subscribers outside of where a broadcast signal can be received by a consumer. Using both the video competition report and the coming review of retrans consent rules (see 1508180053), WTA said the FCC should look at such means to make content available "at reasonable prices and under reasonable terms and conditions for MVPDs regardless of size."

NTCA similarly pushed the FCC to take various steps to help make programming affordable to and under reasonable terms for rural MVPDs, it said. Its recommendations included helping rural MVPDs be able to gauge the market rate for programming as well as blocking programmers from forcing bundling of content on small MVPDs. The FCC also should ban broadband tying and requiring rural MVPDs to put content in specific service tiers, NTCA said. Programmers also should have to offer small MVPDs the same pricing "presently reserved for large ones," it said. It also called on the agency to monitor over-the-top services to ensure rural MVPDs and broadband providers have access to Web-based video content and are not blocked by exclusive arrangements.

Online video providers have become "a full-fledged substitute for broadcast," despite some industry observers' characterization of online as lesser in quality than video via broadcast, cable or satellite, New England Sports Network said. "To some, online video continues to conjure up images of teenagers watching herky-jerky clips of amateur-produced video on phone- or tablet-screens while away from home," NESN said. "Whatever may have been true in the past, that perception is now outdated," especially as people increasingly watch online video via smart TVs, further breaking down the wall between traditional TV and online video. The regional sports network didn't have specific policy or regulatory recommendations but said the FCC should start approaching the video market with that mindset.

Though the market for retail set-top boxes and other video navigation devices has never been as competitive as Congress had hoped when it enacted Section 629 of the Communications Act, the FCC can help make it more like other vibrantly competitive consumer electronics markets, with more features and better pricing, the Consumer Video Choice Coalition said. The group didn't specify which rules or policies should be adopted. The FCC Downloadable Security Technical Advisory Committee has focused on two proposals for technology neutral downloadable security -- one a pay-TV-backed proposal that would use security based on HTML5 and downloadable apps, and a “virtual head end” system based on link protection backed by members of the Consumer Video Choice Coalition (see 1508040062).

It is time to declare the national video market effectively competitive and "remove old analog-era regulations or at least reorient them to a presumptively deregulatory posture to better promote competition and consumer welfare," as well as start toward "sunsetting" all Section 629 regulations, the Free State Foundation said. Failure to do so with 16th such report "seems calculated to prolong the already overextended life of legacy video regulation," FSF said.