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Tech Law Journal |
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Editor's Notes: Before the
By the Commission: I. INTRODUCTION 1. Internet Ventures, Inc. and its subsidiary, Internet On-Ramp, Inc. (collectively "IVI"), filed a Petition for Declaratory Ruling ("Petition") pursuant to Section 1.2 of the Commission's Rules,[1] requesting the Commission to issue a ruling that Internet service providers ("ISPs"), such as IVI, are entitled to commercial leased access under Section 612 of the Communications Act of 1934, as amended ("Communications Act").[2] The Petition was placed on public notice and a time frame was established for filing comments and reply comments.[3] 2. IVI states that it has requested and been denied leased access in Spokane, Washington by TCI of Washington ("TCI"), the holder of the Spokane Cable Communications Franchise.[4] IVI asserts that it offers dial-up and broadband Internet communications in Spokane and wishes to provide its PeRKInet service[5] over cable bandwidth to the residents of Spokane by leasing 6 MHz of TCI's cable facilities in order to supply such service.[6] IVI also argues that the cable operator will not be required to modify its plant or make any additional investments beyond what it is required to provide to other types of leased access users.[7] IVI states that after being denied leased access for its Internet service by TCI,[8] it filed a complaint with the City of Spokane, arguing that TCI's action violated the TCI cable franchise with the City.[9] The City of Spokane declined to take action against TCI and noted that it was unwilling to designate scarce local resources to support the position of either side, noting the lack of clear legal or policy guidelines regarding the issue of whether ISPs are entitled to utilize the leased access channel capacity of cable systems.[10] Therefore, IVI requests that the issues raised in this matter be resolved by the Commission. As discussed below, we find that Section 612 does not require cable operators to make channel capacity on their cable systems available for the range of services that IVI seeks to offer. We therefore deny the petition. II. BACKGROUND 3. The statutory framework for commercial leased access, provided for in Section 612 of the Communications Act, was established by the Cable Communications Policy Act of 1984 ("1984 Cable Act")[11] and later amended by the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act").[12] The 1984 Cable Act, through Section 612, established a federal scheme of channel leasing to assure access to cable systems by third parties unaffiliated with the cable operator who want to distribute video programming free of the editorial control of the cable operator.[13] By enacting Section 612, Congress ensured that unaffiliated video programmers otherwise unable to secure channel capacity on a cable system would be able to lease capacity in order to originate, produce and provide independent video programming over which they, rather than the cable operator, maintained editorial control.[14] Leased access set-aside requirements were established by Congress in proportion to a system's total activated channel capacity to "assure that the widest possible diversity of information sources are made available to the public from cable systems in a manner consistent with the growth and development of cable systems."[15] Section 612 permits cable operators to use any unused leased access channel capacity for their own purposes until a written agreement for the use of such leased access capacity is obtained.[16] Each system operator subject to this requirement must establish, consistent with the rules prescribed by the Commission, "the price, terms, and conditions of such use which are at least sufficient that such use will not adversely affect the operation, financial condition, or market development of the cable system."[17] 4. The 1992 Cable Act amendments to Section 612 broadened the statutory purpose to include "the promotion of competition in the delivery of diverse sources of video programming,"[18] and expanded the Commission's authority over leased access. The legislative history of the 1992 amendments expresses concern that some cable operators may have established unreasonable terms or may have had financial incentives to refuse to lease channel capacity to potential leased access users based on anti-competitive motives, especially if the operator had a financial interest in the programming services it carried.[19] Under the 1992 Cable Act, the Commission was directed: (1) to determine the maximum reasonable rates that a cable operator may establish for leased access use, including the rate charged for the billing of subscribers and for the collection of revenue from subscribers by the cable operator for such use; (2) to establish reasonable terms and conditions for leased access, including those for billing and collection; and (3) to establish procedures for the expedited resolution of leased access disputes.[20] The Commission later enacted regulations to implement the leased access provisions of the 1992 Cable Act.[21] III. DISCUSSION AND ANALYSIS OF ISSUES 5. IVI seeks a declaratory ruling that ISPs are entitled to commercial leased access to cable facilities under Section 612 of the Communications Act.[22] Section 612 requires cable operators of cable systems with 36 or more channels to designate channel capacity for commercial use by third parties unaffiliated with the cable operator.[23] Commercial use is defined as the "provision of video programming."[24] The statutory definition of video programming is "programming provided by, or generally considered comparable to programming provided by, a television broadcast station."[25] As a threshold matter, to be eligible for leased access channel capacity, the content delivered by IVI, and other ISPs, must constitute video programming as defined by the Communications Act. The language of the Act makes clear that "commercial use" of leased access channels is limited to providers of "video programming."[26] This stands in contrast to the definition of the term "cable service" set forth in the Communications Act which, in addition to offering video programming, also permits cable operators to offer "other programming services."[27] The leased access rules specifically permit only the provision of video programming. 6. IVI contends that ISPs are providers of video programming under Section 612 and are entitled to leased commercial access.[28] IVI believes that the availability over the Internet of television broadcast stations and films through "streaming technology" demonstrates that the Internet provides the same video programming that television broadcasting stations provide.[29] IVI is supported by several commenters who contend that the programming provided by ISPs is plainly comparable to the programming provided by a television broadcast station.[30] ISP commenters further argue that video programming provided by ISPs need not be identical to that provided by television broadcast stations, as long as it is comparable.[31] IVI and dotSTAR argue that Internet picture quality will be improved once it is offered over cable because of increased transmission speed.[32] NATOA asserts that bandwidth limitations imposed by cable operators determine if Internet content resembles video programming.[33] According to NATOA, if a cable operator provided IVI a leased access channel capacity of 6 MHz, streaming video would be of comparable quality to the other video programming on the cable system.[34] VDPS and other ISP commenters contend that the convergence of broadcast and Internet technologies indicates that differences in the video experience provided by broadcast television and Internet video over cable are disappearing.[35] IVI maintains that there is no legal basis for treating the same programming material differently when only the delivery path for programming offered by the Internet is different than that employed by broadcast stations.[36] Qwest Communications Corporation ("Qwest") maintains that Section 612 does not specify the type of technology that must be used to deliver video programming and the legislative history suggests that any type of technology could be used to deliver video programming.[37] 7. Commenters in support of IVI's petition believe that ISPs’ provision of data as well as video programming does not disqualify them from leased access eligibility because television stations may, and often do, offer non-video ancillary data pursuant to current Commission rules.[38] CDS Networks, Inc. ("CDS Networks") argue that the relative quantities of video and data have no bearing on whether content is video programming because much of a digital television (DTV) channel may technically consist of unrelated data providing ancillary and supplementary services, in addition to carriage of a video signal.[39] 8. In opposition, cable commenters argue that provision of access to the Internet, including video material available on the Internet, is not tantamount to being a provider of video programming for purposes of Section 612.[40] Commenters assert that in creating the leased access legislation in 1984, Congress limited the class of potential users of leased access by narrowly defining "video programming" as programming comparable to that provided by broadcast television stations in 1984.[41] Cable commenters argue that Internet video today is not comparable to broadcast television in quality and even if some day a portion of ISP access service may connect to video streaming that may be comparable to broadcast television programming, ISPs would still not be entitled to leased access because they are not providers of video programming.[42] 9. Commenters argue that the interactive nature of the Internet removes Internet video service from the statutory definition of "video programming."[43] Commenters maintain that the Commission has emphasized in previous decisions that one of the key characteristics of the programming generally offered in 1984 by broadcast stations, superstations, cable networks and pay cable was that it was one way, broadcast from a single point to multiple points.[44] The National Cable Television Association ("NCTA") notes that there are fundamental differences between the one-way delivery of broadcast television and the two-way nature of video over the Internet.[45] NCTA points out that the Commission previously recognized the distinction between providing video programming and providing interactive functionality by noting that the one way nature of broadcast stations provides no opportunity for viewer interaction, manipulation or customization.[46] Commenters also maintain that in previous instances, the Commission has determined that Internet access service is not "video programming" as the Commission defines that term.[47] Allbritton argues that because the Commission stated in its most recent Video Competition Report that the quality of Internet video is not comparable to that of the video programming offered by television broadcast stations, Internet video is not Title VI video programming.[48] Commenters also maintain that the Commission recently has rejected attempts to classify Internet programming as video programming for purposes of the over-the-air reception devices rules.[49] Comcast also notes that the Commission has declined to extend video programming regulations such as closed captioning, v-chip, and emergency alert rules to Internet transmissions.[50] 10. Cable commenters dispute that what is offered by commercial broadcast television stations is comparable to the Internet because television broadcast stations primarily provide video programming, whereas the Internet is primarily data oriented.[51] NCTA disputes that the non-video material provided as part of an ISP's Internet access is encompassed within the plain language of Section 612.[52] Allbritton Communications Company ("Allbritton") argues that video streaming provided interactively over the Internet is an "information service," which should not be subject to Title VI.[53] Allbritton maintains that the Commission has not regulated ISPs under Title II, and it would be illogical to impose regulatory requirements under Title VI.[54] AT&T maintains that the leased access rules apply only to the provision of video programming, which renders whatever non-video data services that television broadcasters offer in addition to video programming ineligible for entitlement to leased access.[55] Further, Adelphia argues that although digital television signals and Internet content both combine data and video elements, these media are quite different because television combines a primary video content with ancillary and supplementary data services, whereas Internet content is overwhelmingly text and data oriented, with some ancillary video services.[56] 11. At the outset of our discussion, we observe that, in addition to discussing the issue of ISP eligibility under the leased access provisions of Section 612, commenters also extensively discussed broader issues, such as mandatory ISP access to cable operators' broadband facilities, and whether Internet access provided by a cable system constitutes "cable service,"[57] "telecommunications,"[58] or an "information service."[59] The Commission need not address these issues in this proceeding.[60] Rather, this proceeding is narrowly focused on the issue of ISP leased access eligibility in the context of Section 612 and is not the appropriate forum to consider such issues. 12. While commenters raised numerous issues regarding the availability, quality, and regulatory problems associated with Internet "streamed" video programming, we need address only the most basic threshold issue to resolve IVI's petition: does ISP Internet access service, such as that provided by IVI, constitute video programming as contemplated by Section 612 of the Communications Act (i.e., programming provided by, or generally considered comparable to programming provided by, a television broadcast station)? We conclude that it does not. 13. Internet access service generally consists of numerous distinct and related elements, such as access to personal, educational, informational, and commercial web sites; the ability to send and receive electronic mail; access to streamed video content; Internet video messaging and conferencing; and a host of other services both realized and forthcoming. In short, Internet access service provides consumers with a varied array of services. In contrast, the leased access provisions of the Communications Act require cable operators to reserve channel capacity for one statutorily prescribed purpose -- video programming.[61] In enacting the leased access provisions in 1984 and later amending them in 1992, Congress did not express an intention that the leased access provisions require cable operators to make channel capacity available for anything other than video programming. Accordingly, Section 612 cannot be read as requiring a cable operator to make channel capacity available to provide services that are not video programming, such as the Internet access service provided by IVI and other ISPs. As noted, video programming is defined by the statute in terms of comparability to programming provided by a television broadcast station.[62] The Commission has previously opined that Congress intended the “video programming” definition to take its meaning from the services offered at the time (1984) when the definition was adopted. Second Video Dialtone Order, 7 FCC Rcd 5781, para. 75 (1992). To the extent that IVI or others might dispute this reading of the statute in arguing that “video programming” includes things such as data services or interactive services, we note that the statutory reference is specifically to “video” and to “programming.” While IVI’s submission might be read as implicitly requesting that we overrule that determination,[63] they have made no direct challenge to the validity of the precedent and the record in this proceeding does not permit us to do so. The term “video programming” as currently understood has meaning not solely for purposes of the leased access rules but in numerous other provisions of the Communications Act.[64] Admittedly, we might face a different set of issues if IVI, or another ISP, proposed to utilize leased access capacity for the provision of a service comprised wholly of video programming available via the Internet. Such a proposal would not automatically run afoul of the threshold issue necessitating denial of IVI's petition. In this regard, cable commenters have raised arguments regarding whether video content obtained through the Internet qualifies as "video programming" for purposes of Section 612, and whether ISPs, such as IVI, are actually "providers" of video programming as contemplated by Section 612.[65] Because we resolve IVI's petition on the narrow ground that Section 612 does not permit ISPs to obtain leased access channel capacity for the purpose of providing services other than video programming, we need not address these arguments. We note only that, regardless of the source of the video content, requests for leased access channel capacity must comply with all of the requirements set forth in Section 612. IV. CONCLUSION 14. Broadband Internet service offers consumers the wealth of information, convenience, and opportunity of the Internet at connection speeds previously unavailable. However, Congress limited the leased access provisions in scope and purpose. Section 612 does not mandate access to a cable operator's facilities for other than the provision of video programming generally comparable to that offered by television broadcast stations. Internet access service, such as that proposed by IVI, is not limited to the provision of such programming. Finally, we note that IVI has entered into several voluntary agreements with cable operators to provide its Internet service to cable subscribers using the cable operator's broadband facilities. We encourage such market-based solutions and emphasize that our conclusions today have no impact upon such voluntary agreements. V. ORDERING CLAUSE 15. Accordingly, IT IS ORDERED that the Petition for Declaratory Ruling filed by Internet Ventures, Inc., and its subsidiary, Internet On-Ramp, Inc., IS DENIED.
APPENDIX A Petitioner Internet Ventures, Inc. (IVI) Commenters Adelphia Communications Corp., Insight Communications, LP and MediaCom LLC
(Adelphia) Reply Commenters Adelphia Communications Corp., Insight Communications, LP and MediaCom LLC
(Adelphia) Footnotes [1] 47 C.F.R. § 1.2. [2] 47 U.S.C. § 532. [3] See Petition Seeking Declaratory Ruling that Internet Service Providers are Entitled to Commercial Leased Access to Cable Facilities under Section 612 of the Communications Act of 1934, as amended, Public Notice, DA 99-1104 (rel. June 8, 1999). Comments were due on July 13, 1999 and replies were originally due on July 28, 1999. IVI later filed for a "Motion for Extension of Time," which was subsequently granted, pursuant to Section 1.46 of the Commission's rules, requesting that the deadline for filing replies be extended until August 11, 1999. See In the Matter of: Internet Ventures, Inc. and Internet On-Ramp, Inc., Memorandum Opinion and Order, 14 FCC Rcd 11636 (1999). A list of commenters and reply commenters is set forth in Appendix A and includes the acronyms and abbreviations by which they are referred in this item. [4] Petition at 1. [5] PeRKInet uses a Phone Return Cable Internet technology, which combines regular phone lines and existing cable television or wireless plant to deliver Internet access. Petition at 2. [6] Petition at 1-2. [7] Id. at 14. [8] Id. at 3, referencing letters dated January 7, 1999, January 28, 1999 and February 18, 1999 from Kenneth G. Watts, General Manager, TCI of Washington to Don Janke, Chairman, Internet On-Ramp, Inc. [9] Id. at 4, referencing the April 14, 1999 Complaint filed with the City of Spokane, Washington by Internet On-Ramp, Inc. against TCI of Washington. [10] Id. at 4, referencing the May 12, 1999 letter from Bill Pupo, Spokane City Manager to Robert Bowman, Internet On-Ramp, Inc. [11] Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 (1984), 47 U.S.C. § 521 et seq. The leased access provisions are codified at Communications Act § 612, 47 U.S.C. § 532. [12] Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992), 47 U.S.C. § 521 et. seq. (1992). The 1992 Cable Act amends Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et. seq. [13] 47 U.S.C. § 532(b). In promulgating Section 612, the House Committee stated that its "overriding goal in adopting this section is divorcing cable operator editorial control over a limited number of channels. . . . [I]t is not the cable operator's exercise of any economic power, but his exercise of editorial control, which is of concern to the Committee." House Committee on Energy and Commerce, H.R. Rep. No. 934 at 50, 98th Cong., 2d Sess. (1984). [14] Congress observed that "[c]able operators clearly have an incentive to provide a diversity of program services . . . . [h]owever, cable operators do not necessarily have the incentive to provide a diversity of programming sources, especially when a particular program supplier's offering provides programming which represents a social or political viewpoint that a cable operator does not wish to disseminate, or the offering competes with a program service already being provided by that cable system. H.R. Rep. No. 934 at 48, 98th Cong., 2d Sess. (1984). [15] 47 U.S.C. §§ 532(a), 532(b)(1). Cable systems with 36 or more activated channels are required to comply with these set-aside requirements. [16] 47 U.S.C. § 532(b)(4). [17] 47 U.S.C. § 532(c)(1). [18] 47 U.S.C. § 532(a). [19] House Committee on Energy and Commerce, H.R. Rep. No. 628 at 39, 102d Cong., 2d Sess. [20] 47 U.S.C. § 532(c)(4)(A)(i), (ii), (iii). [21] The Commission's rules governing commercial leased access are located at 47 C.F.R. 76.701, 76.970, 76.971, 76.975 and 76.977. The Commission established its initial leased access regulations in Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992 (Rate Regulation), Report and Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd 5631 (1993); these rules were later amended in Order on Reconsideration of the First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 16933 (1996) and Second Report and Order and Second Order on Reconsideration of the First Report and Order, 12 FCC Rcd 5267 (1997). [22] 47 U.S.C. § 532. [23] 47 U.S.C. § 532(b)(1)(A)-(E). [24] 47 U.S.C. § 532(b)(5). [25] 47 U.S.C. § 522(20). [26] 47 U.S.C. § 532(b)(5). [27] Cable service is defines as "the one-way transmission to subscribers of (i) video programming; or (ii) other programming service . . . "). 47 U.S.C. § 522(6). [28] Petition at 4. [29] Id. [30] Qwest Comments at 4; VDPS Comments at 5-6. [31] IVI Reply at 25; VDPS Reply at 2-3. [32] IVI Reply at 30; dotSTAR Reply at 3. [33] NATOA Reply at 4. [34] Id. [35] VDPS Comments at 8; TRA Comments at 6; AOL Comments at 6. [36] Petition at 5. [37] Qwest Comments at 5, citing Cable Communications Policy Act, H.R. Rep. No. 98-134, at 4677-81 (1984). [38] CDS Networks Comments at 3; IVI Petition at 7. [39] CDS Networks Comments at 3-4. [40] ACA Comments at 8; Allbritton Comments at 4; MediaOne Comments at 9; NCTA Comments at 3; TW Comments at 3; AT&T Comments at 9. [41] NCTA Comments at 4, citing 47 U.S.C. §522(20); TW Comments at 7. [42] NCTA Comments at 11; TW Comments at 6. [43] MediaOne Comments at 10; NCTA Comments at 7. [44] NCTA Comments at 7 and TW Comments at 3, each citing Telephone Company-Cable Television Cross-Ownership Rules, Second Report and Order, Recommendation to Congress, and Second Further Notice of Proposed Rulemaking, 7 FCC Rcd 5781, 5821 (1992) ("Second Video Dialtone Order"); MediaOne Comments at 11. [45] NCTA Comments at 9. [46] Id. at 7; Comcast Comments at 6, each citing the Second Video Dialtone Order, 7 FCC Rcd 5781, 5821 (1992). [47] Allbritton Comments at 7; AT&T Comments at 7; MediaOne Comments at 9; NCTA Comments at 9. [48] Allbritton Comments at 7, citing Annual Assessment of the Status of Competition in Markets for the Delivery of Video Programming, Fifth Annual Report, 13 FCC Rcd 24284, 24349-24350 (1998) ("Fifth Annual Competition Report"). [49] AT&T Comments at 9; NCTA Comments at 9, citing Implementation of Section 207 of the Telecommunications Act of 1996, Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service, Order On Reconsideration, 13 FCC Rcd 18962, 18987-88 (1998). [50] Comcast Comments at 6-7. [51] ACA Comments at 8; Adelphia Comments at 5. [52] NCTA Comments at 12. [53] Allbritton Comments at 4, citing 47 U.S.C. §153(20). [54] Allbritton Comments at 4. [55] AT&T Comments at 11. [56] Adelphia Comments at 5-6. Commenters maintain that treating the services delivered by ISPs as video programming has not easily foreseen consequences. ACA Comments at 6; Adelphia Comments at 9. TW contends that finding Internet streamed video and retransmission of television stations by cable to both constitute video programming has implications regarding copyright liability, retransmission consent requirements, and a host of signal carriage issues, including network nonduplication, syndicated exclusivity and sports blackout. TW Comments at 10. Commenters also contend that the large assortment of adult-oriented services on the Internet makes it practically impossible for cable operators to exercise their rights under Section 612(h) to block obscene or indecent programming. ACA Comments at 6; Adelphia Comments at 9. [57] 47 U.S.C. § 522(6). [58] 47 U.S.C. § 153(43). [59] 47 U.S.C. § 153(20). [60] See generally Brief for the Federal Communications Commission as Amicus Curiae, AT&T Corp., Telecommunications, Inc., et al. v. City of Portland et al. at 19, Case No. 99-65 PA (9th Cir. 1999). [61] 47 U.S.C. § 522(20). [62] Id. [63] See IVI Ex Parte presentation of October 22, 1999 (citing example of low power television station in Houston, Texas that provides Internet data delivery on a subscription basis as supporting its definition of “video programming”). [64] See, e.g., 47 U.S.C. § 251(f)(1)(C) (interconnection), 47 U.S.C. § 534(g)(1) (cable must carry), 47 U.S.C. § 549(a), (b), (c), (d), (e) (cable navigation devices), 47 U.S.C. § 613(b) (video programming accessibility) et al. [65] Commenters also argue whether the legislative objectives behind Section 612 support the use of leased access channels by ISPs. They also present arguments regarding whether the public interest is served by ISP leased access use. Again, these issues need not be addressed in this proceeding because we have concluded that IVI is ineligible for leased access under the express language of Section 612. |
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