Forcing Retrans During an MVPD Dispute Flies in Face of Law, NAB Says

an FCC filing Tuesday in docket 15-216. NAB said MVPDs have been pushing such a goal as part of the FCC review of the totality of circumstances test, but the argument that any public performance of a copyrighted work opens it up to third parties also publicly performing it doesn't hold water, likening such an argument to saying any broadcast of an ABC show means NBC can then put it online. The association said that Section 106 gives the copyright owner the exclusive authorization for those public performances, and MVPD arguments for that forced retrans are trying to create such compulsory licenses. Congress was clear in the Communications Act that it didn't want to alter existing program licensing agreements between broadcasters and programmers, and any FCC requirement a broadcaster offer content online in a way that would alter or limit existing licensing agreements would violate both that intent and section 325(b), NAB said. It said AT&T's argument that broadcasters’ copyright interests are minimal because they have made their programming publicly available wrongly cites 1984's Supreme Court decision in Sony v. Universal City Studios when that case "is not analogous, relevant or instructive."