Aereo founder/CEO Chet Kanojia

It has been approx 4 months since Aereo paused its operations nationwide following the Supreme Court’s ruling in favor of a group of broadcasters. Now the over-the-air service provider is making noise again, hoping to become an MVPD as the FCC considers whether to broaden the definition of MVPDs to Aereo and other linear online video distributors. CEO Chat Kanojia and several other execs met with FCC chmn Tom Wheeler and other FCC officials including Republican commish Ajit Pai last week, asking for that a narrow category of online video services be included within the agency’s definition of MVPD. “Online linear channel streaming services have the ability to comply with the Commission’s regulatory obligations imposed on MVPDs, such as program carriage, emergency alerts, equal opportunity employment and closed captioning,” Aereo’s ex parte filing said. Regarding program carriage obligations, the company noted that online video streaming systems don’t face bandwidth constraints encountered by incumbent services, and that Aereo saw no impediment to carrying must-carry stations. By defining “MVPDs” to include “systems that transmit linear channels of video programming to consumers via the Internet—thereby securing to all MVPDs, in a technology-neutral way, the right to engage in timely, good faith negotiations to license channels by retransmission consent,” the FCC could provide assurances to new market entrants like Aereo, the company claimed. One concern of including online programming distributors is that potential licensor insistence on taking a “bundle” of broadcast and cable channels in retrans negotiations could harm the economic viability of online streaming services. Aereo urged that the good faith negotiation obligation for retrans require the licensor to offer a license to only the broadcast channels subject to retrans consent, without a license to other content or bundles. In addition, it asked that any licenses offered to online services be in parity to licenses offered to other types of distributing systems. Back at the FCC, there’s no update beyond what Wheeler said at an earlier press conference—redefining an MVPD is something the Media Bureau is exploring. “As a company, we have always worked hard to follow the law. Should the FCC move on this issue, it would be a meaningful and important step forward for competition in the video marketplace,” Kanojia said in a blog post Mon. Aereo will have to wait for a while before anything happens. Currently, there’s no formal proceeding at the FCC, though a proposal adopting a technology neutral definition of an MVPD is reportedly being drafted. Even if the FCC approves the proposal, it will have to open up the item for public comment, which will take time. Before the FCC spends time and resources expanding the scope of the program access rules, it should conclude its pending program access rulemaking, ACA pres/CEO Matt Polka said in a conversation with Wheeler at the COMPTEL Fall Convention a week ago. The current rules “effectively denies nearly all small and medium-sized MVPDs from having the full legal protections and rights that Congress intended, and that the Commission is now considering extending to OVDs,” according to ACA’s ex parte filing.

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