Antenna-based Internet television streaming operation FilmOn has joined similar service Aereo in filing a required ex parte notice disclosing its recent conversations with the Federal Communications Commission (FCC), when it informed the Commission of its intent to commence retransmission of local television broadcast stations to authenticated subscribers in local markets consistent with FCC Rules applicable to Multichannel Video Programming Distributors (MVPD) and subject to any applicable Court Orders or decisions.
In the filing, Counsel to FilmOn explained that prior to the Supreme Court Opinion in American Broadcasting Cos., Inc. v. Aereo, Inc., 134 S.Ct 2498 (2014), FilmOn had established head ends to receive, record and stream local broadcast station video programming to consumers in dozens of designated market areas. The Supreme Court determined such a service was similar to a cable system and had it existed in 1976, Congress would have made clear it intended to cover such service within the right of public performance. Following that decision, FilmOn ceased providing its service. FilmOn continues to litigate issues related to the applicability of the compulsory licence under Copyright Act section 111.
Given recent news reports that the FCC was poised to consider adoption of a Notice of Rulemaking (NPRM) to establish the legal obligations of online linear video distribution services such as FilmOn, within the definition of MVPDs, Counsel to FilmOn emphasised that the platform intends to offer its service consistent with all regulatory obligations.
FilmOn intends to offer TV stations the right to elect must carry or retransmission consent. “FilmOn will also provide programme exclusivity, emergency alerts and information, closed captioning, equal employment opportunity and to otherwise comply in good faith with all of the rules and regulations that govern MVPD service,” says the filing.
Prior to suspending its operations in the wake of the Supreme Court Opinion and subsequent Contempt rulings, FilmOn had sought to differentiate itself from its market counterpart by expressing its willingness to pay necessary royalties for retransmission of broadcast networks, something Aereo had argued didn’t apply to its service.
Counsel for FilmOn urged the FCC to move forward expeditiously to consider and adopt appropriate rules to create regulatory parity between similar services, and promote competition to entrenched legacy video providers that will benefit consumers by giving them more choices. “Moreover, eliminating regulatory uncertainty will spur investment and create an environment where innovation will thrive. Counsel noted that online video distributors are not subject to the same capacity constraints of traditional cable systems or satellite systems and as a result could open carriage opportunities for new, independent and niche video programming services to achieve greater distribution and access new markets historically foreclosed to them,” it suggests.