Rosenworcel: Classifying Streamers as MVPDs Requires Congress

Grassley, R-Iowa. Grassley wrote Rosenworcel in February, amplifying calls from broadcasters for the FCC to refresh the record on a 2014 proceeding on classifying streaming services as virtual MVPDs (see 2301260057). As subscribers increasingly move from regular MVPDs to streaming, broadcaster retransmission consent revenue is falling, and under the current system streaming services such as Hulu negotiate compensation for programming with networks rather than individual broadcasters, said Grassley. In the 2014 proceeding, “the record revealed significant concerns with the agency asserting jurisdiction over MVPDs,” Rosenworcel responded. The FCC “lacks the power to change these unambiguous provisions on its own but can do so if Congress changes the underlying law,” she said. If the FCC proceeded anyway, it’s not clear if the U.S. Copyright Office would allow the current statutory programming license used by current MVPDs to apply to virtual MVPDs, she said. The license allows MVPDs to negotiate for broadcast programming without having to negotiate with every entity that holds rights to each program. Without the license, “those distributors would be obligated to black out programming for which they are not able to negotiate copyright licenses, she said. The FCC is monitoring the matter of networks negotiating streaming contracts for broadcasters and the FCC Media Bureau “is carefully reviewing the record as it assesses appropriate next steps,” the letter said. “In light of the decades-old legal framework governing these matters, please know I would be happy to work with you to update underlying law to better reflect the current marketplace,” Rosenworcel said.