Over the last 20 years, Internet-based programming services and the corresponding distribution platforms have continued to evolve at a staggering pace, with technological advances allowing for faster and more cost-efficient transmissions. The last five years, in particular, have demonstrated to many that the Internet may well be the “projected” Promised Land for the television industry. Established cable programming networks, including HBO, ESPN and others, have leveraged the Internet and created compelling services, including apps and direct-to-consumer offerings. Cable operators and other multi-channel video programming distributors have embraced TV Everywhere and continued to expand the variety and breadth of their IP-connected products and services, offering subscribers an all-in-one linear, on-demand and time-shifted entertainment solution. Even so-called “over-the-top” providers, such as Netflix, Amazon and Hulu, have fully emerged with compelling original programming and viable licensed content.
The march towards an IP-connected frontier, which has been largely driven by the convergence of cloud-based products and services with the delivery and consumption of entertainment content, is now presenting unprecedented opportunity, and the U.S. legal system, together with its rules and regulations, and corresponding court decisions, has neither advanced the ball nor halted the progression to any significant degree. While U.S. courts in the last 10 years have stymied fringe players looking to bring broadcast television to the Internet, such as iviTV and Aereo, they have been decided slow and methodical in their approach to creating new legislation and/or precedent for a rapidly evolving medium which drives some of the U.S.’s most important industries – namely, media, entertainment and technology.
The latest foray into this storm of industry evolution was spearheaded by the U.S. Federal Communications Commission (“FCC”) late last year, when it proposed that the definition of the term “multichannel video programming distributor” (“MVPD”) under the U.S. Communications Act be modernized to include certain internet-based programming services – a decision which, among other things, could ultimately result in these entities possessing the rights and the responsibilities of an MVPD – in other words, think of an Aereo-like entity with the right to retransmit a broadcast television line-up. Continue Reading