On January 15, 2015, the Federal Communications Commission’s (FCC) Notice of Proposed Rulemaking (NPRM) regarding the scope of its definition of “multichannel video programming distributors” (MVPDs) was published in the Federal Register. Initial comments are due February 17, 2015, and reply comments are due March 2, 2015.

Through the proposed rulemaking, the FCC seeks to expand what entities qualify as MVPDs so that the FCC’s regulations accurately reflect how content is being delivered to consumers today. The FCC proposes that the definition of a MVPD in its regulations include “all entities that make available for purchase, by subscribers or customers, multiple streams of video programming distributed at a prescheduled time,” regardless of the platform by which the entity distributes the programming. This definition of a MVPD would include online distributors of subscription-based, continuous, linear streams of video programming, but would not include online distributors that make programming available for free or on an on-demand basis (e.g., Netflix, Hulu, Amazon Instant Video, or YouTube). The FCC contends that free or on-demand services fall outside of the statutory definition of a MVPD.

In the alternative, the FCC proposes a definition of a MVPD that would require a programming distributor to have control over a transmission path. Under this interpretation, an Internet-based linear video provider would need to have control of at least some portion of the physical means by which programming is delivered in order to qualify as a MVPD.

The FCC is seeking comments on a variety of issues related to the two proposed interpretations of a MVPD, including the reasonableness of the interpretations under the Communications Act, the possible impact on industry and consumers, any needed modifications to the retransmission consent negotiation rules for MVPDs, and how to promote competition.