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Thursday, February 17, 2011


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John Bergmayer

The privileges that MVPDs receive go far beyond retrans--cable for years benefitted from rules that made it illegal to compete with them, and satellite providers get exclusive access to spectrum.

I think that online video providers ought to be brought under some of the same rules as cable companies, when the purpose of those rules is to promote competition. For example, program access rules, which have worked successfully to help DBS and telco IPTV, should be extended in some ways to online providers.

That said, there are differences between pure facilities-based and over-the-top providers, and there's nothing wrong with recognizing that. Particularly, I think that "connection"-type requirements make sense for facilities-based systems, but are not applicable to purely over-the-top services. These kinds of rules are about attachments to physical networks. In the MVPD context, that means set-top-box rules. An analogy is the way you have the right to use any phone or network attachment with a traditional phone company under the FCC's Carterfone ruling, but that kind of rule doesn't apply to Skype. Attachment requirements still exist in the Internet world, but are applied to the physical network (a broadband provider).

In short, the difference between a service that is offered over the Internet, and a service that is offered over proprietary infrastructure (or exclusive spectrum) is a real one that the FCC can recognize for some purposes and not others. Most regs were written in a world where most services were "vertically integrated" between the infrastructure or spectrum and the service offered over that facility. This was a background assumption, that needs to be modified.

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