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The Federal Communications Commission is currently reviewing what constitutes “good faith” when broadcasters and distributors negotiate with each other. Is this developing into the next net neutrality battlefront?
Two years ago, during a retransmission licensing standoff, CBS blocked Time Warner Cable customers from viewing CBS programming made available free online. The two sides eventually came to a deal, but what happened then hasn’t been forgotten. The tactic is now being examined as part of a larger review on the standards of negotiating for retransmission consent of a broadcast signal. As such, those with a stake are filing their comments at the regulatory agency. In December, for instance, CBS defended the right to restrict access to online streams.
On Thursday, the Motion Picture Association of America also weighed in on the topic by strongly cautioning the FCC against looking at the availability of programming when making a “good faith” analysis. The film-studio trade group said the FCC should “respect programmers’ discretion,” further invoking the First Amendment to have the FCC steer clear of regulating online content.
“Under the First Amendment, it is the speaker and the audience acting in the free market — not the government — that determines what is said and heard, as well as how it is communicated,” wrote Neil Fried, MPAA senior vp government and regulatory affairs.
The National Cable and Telecommunications Association has a different take.
This trade group believes that during retrans fights, programmers gain unfair leverage over cable operators by withholding their content from customers of that cable operator’s Internet access services. Although the NCTA is no friend to net neutrality — it’s currently aiming to have the U.S. Court of Appeals for the D.C. Circuit strike down the FCC’s “Open Internet” rules — it is more than happy to invoke those same rules to get changes it says are necessary.
“Using online blocking to gain bargaining leverage is particularly unfair because of the non-reciprocal, one-sided availability of the tactic,” the NCTA wrote Thursday in its own comment. “The Commission’s ‘Open Internet’ rules prevent cable operators from using similar blocking of broadcast or non-broadcast Internet content.”
The MPAA stayed mostly on the sidelines during the net neutrality debate, although it did file a comment in September 2014 that prodded the FCC to “not to impose network neutrality obligations on ‘edge provider activities, such as the provision of content on the Internet.'”
When the FCC came out with its “Open Internet” rules, the MPAA got what it wanted. The FCC made clear that it was not “regulating the Internet, per se, or any Internet applications or content.”
Pointing this out now, the MPAA wants to make sure there’s no change in stance. Otherwise, Hollywood films studios could find themselves next in line at a federal appeals court, fighting the FCC’s police powers.
As its Thursday comment puts it, “Although the Communications Act grants the FCC some authority over transmission of broadcast and pay-TV signals, the FCC does not have authority to regulate the availability of specific video content housed on the Internet. Whether to make their content available online, and under what terms and conditions, is a matter for the programmers’ case-by-case discretion.”
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