Federal Communications Commission fcc 12-81 Before the Federal Communications Commission

Statement of

Commissioner Robert M. McDowell
Re: Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 07-269

First, I thank the incredibly hardworking and talented professionals in the Media Bureau for laboring for what must have been an uncountable number of hours to produce this comprehensive report. The report contains a wealth of information about the video market revealing just how dynamic and constructively chaotic it is. Accordingly, I would have preferred for this report to affirmatively conclude that the video programming market is competitive. It provides ample evidence for such a conclusion.

For example, since our last report, which analyzed data available as of June 2006, “telephone” MVPDs have emerged as a major competitive force, the digital television transition has yielded more channels for free over-the-air, and the Internet and mobile platforms have enabled consumers to access video content from an immeasurable universe of sources. In fact, given these non-traditional players, the competition is even more robust than this report reflects.
More consumers are accessing more online video content, more often. From May 2011 to May 2012, unique viewers of online video content increased by more than four million.² The consumption per viewer during the same period increased from 15.9 to 21.9 hours per month, a staggering thirty-eight percent increase.³ The amount of content viewed has witnessed growth as well with the number of videos watched increasing by almost three billion, more than seven percent, from May 2010 to May 2012.⁴
Furthermore, the growth of the Internet video marketplace is underscored by the popularity of over-the-top devices,⁵ which allow consumers to use their televisions and mobile devices to watch online video content. Industry analysts project shipments of over-the-top devices to increase by nearly fifty percent in 2012, from 258 million to 384.8 million worldwide.⁶ This increase comes on the heels of a sixty-eight percent increase in 2011.⁷ One over-the-top video provider alone exemplifies the growth of this market, recently crossing the threshold of one billion hours viewed in one month.⁸ The company estimates that its twenty-four million U.S. subscribers watched an average of eighty minutes of its content everyday in June.⁹
Unfortunately, the report’s analysis of the Internet’s effect on the video market is generally limited to online video distributors offering professional content previously exhibited on television or theatrically. Although such content is clearly a driving force in the video market, the Internet, coupled with mobile devices, provides alternate outlets for content outside of the traditional media and entertainment structure. I hope that future reports will also explore the market effects of alternative and emerging online video distributors that are creating new and original content.
I am pleased to vote in support of this report, along with the accompanying notice of inquiry to obtain data regarding the video services industry for 2011 and 2012. We have a terrific opportunity to get the Commission back on track so that we can release these reports annually as intended by Congress.

STATEMENT OF
COMMISSIONER AJIT PAI

Re: Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 07-269

I would like to thank the Media Bureau staff for all of their work producing this comprehensive report, which demonstrates in detail that the video marketplace is more competitive than it ever has been. Over the four years covered by the report, the range of MVPD options expanded, broadcasters increased their number of multicast streams, distribution of video content over the Internet exploded, and the variety of devices capable of displaying video programming grew dramatically. This is all good news, because competition within and among market segments (broadcasters, MVPDs, and online video distributors) benefits consumers.

Given the fast pace of change within the industry, it is vital that the Commission comply with its statutory mandate to “annually report to Congress on the status of competition in the market for the delivery of video programming.” 47 U.S.C. § 548(g). Our record on this score is a matter of public record and need not be repeated here. I am hopeful, however, that we are back on track and that we will release our next report in 2013.

1 47 U.S.C. § 548(g).

2 While we focus on these four years, in many instances we find it useful also to recognize some more recent developments based on data that we have collected from third-party sources. See infra, ¶ 17.

3 See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 and Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 09-66, Fourteenth Report, 25 FCC Rcd 11407 (2010) (“14^th Mobile Wireless Report”); Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 and Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 10-133, Fifteenth Report, 26 FCC Rcd 9664 (2011) (“15^th Mobile Wireless Report”); Third Report and Analysis of Competitive Market Conditions with Respect to Domestic and International Satellite Communications Services, Report and Analysis of Competitive Market Conditions with Respect to Domestic and International Satellite Communications Services, IB Docket Nos. 09-16 and 10-99, 26 FCC Rcd 17284 (2011) (“Third Satellite Competition Report”).

4 For purposes of this report, MVPDs are companies that offer multiple channels of video programming to consumers for a subscription fee. The term “MVPD” is defined more fully below in Sec. III.A.1.

5 We consider broadcast television stations separately for the 14th Report, as we have done in previous reports. Although broadcasters have transitioned to digital transmission and have the capability to offer additional linear channels, they still offer far fewer programs than are available from MVPDs and do not provide a subscription service. The Commission has previously held that broadcast television alone is not sufficiently substitutable with the services provided by MVPDs to constrain attempted MVPD price increases, and hence declined to broaden the MVPD product market. Accordingly, we treat broadcasters as part of a separate group. See 47 U.S.C. § 521(1); S. Rep. No. 102-92, at 8-12 (1991). See also General Motors Corporation and Hughes Electronics Corporation, Transferors, and The News Corporation Limited, Transferee for Authority to Transfer Control, MB Docket No. 03-124, Memorandum Opinion and Order, 19 FCC Rcd 473, 509, ¶ 75 (2004) (citing Competition, Rate Deregulation, and the Commission’s Policies Relating to the Provision of Cable Television Services, MM Docket No. 89-600, Report, 5 FCC Rcd 4962, 5003, ¶ 69 (1990)); Application of EchoStar Communications Corporation, General Motors Corporation, and Hughes Electronics Corporation (Transferors) and EchoStar Communications Corporation (Transferee), CS Docket No. 01-348, Hearing Designation Order, 17 FCC Rcd 20559, 20607-09, ¶¶ 109-115 (2002) (“EchoStar-DIRECTV HDO”).

6 An “OVD” is any entity that offers video content by means of the Internet or other Internet Protocol (IP)-based transmission path provided by a person or entity other than the OVD. An OVD does not include an MVPD inside its MVPD footprint or an MVPD to the extent it is offering online video content as a component of an MVPD subscription to customers whose homes are inside its MVPD footprint. See Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to Assign Licenses and Transfer Control of Licensees, MB Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4357, App. A (2011) (“Comcast-NBCU Order”). Consumers need a broadband connection to receive video content from OVDs. The issue of whether a certain type of OVD also qualifies as an MVPD under the Act and our regulations has been raised in pending program access complaint proceedings. See, e.g., VDC Corp. v. Turner Network Sales, Inc., et al., Program Access Complaint (Jan. 18, 2007); and Sky Angel U.S., LLC v. Discovery Communications LLC, et al., Program Access Complaint, MB Docket No. 12-80, CSR-8605-P (Mar. 24, 2010). Nothing in this Report should be read to state or imply our determination on that issue. The Media Bureau though is currently seeking comment on the interpretation of the terms “MVPD” and “channel.” See Media Bureau Seeks Comment On Interpretation of the Terms “Multichannel Video Programming Distributor” and “Channel” as Raised in Pending Program Access Complaint Proceeding, MB Docket No. 12-83, Public Notice, 27 FCC Rcd 3079 (MB 2012).

7 AT&T began its U-verse service in late 2006 and did not report data for that year.

8 “TV Everywhere” refers to an MVPD initiative, which allows subscribers of certain services to access video programming on stationary and mobile Internet-connected devices, including television sets, computers, tablets, and smartphones. MVPDs market their TV Everywhere initiatives under a variety of brand names (e.g., Verizon’s FlexView). See also infra, nn. 30 & 31.

9 See infra, n. 541.

10 See infra, ¶ 290 & n. 929.

1 1992 Cable Act, Pub. L. No. 102-385, § 19, 106 Stat 1460, 1494 (1992) (“The purpose of this section is to promote the public interest, convenience, and necessity by increasing competition and diversity in the multichannel video programming market, to increase the availability of satellite cable programming and satellite broadcast programming to persons in rural and other areas not currently able to receive such programming, and to spur the development of communications technologies.”).

2 Video programming is defined as: “Programming provided by, or generally considered comparable to programming provided by, a television broadcast station that is distributed and is exhibited for residential use.” 47 U.S.C. § 522(20); 47 C.F.R. § 79.1(a)(1).

3 See Section 628(g) of the Communications Act of 1934, as amended, 47 U.S.C. § 548(g). The Commission’s previous reports appear at: Implementation of Section 19 of the 1992 Cable Act and Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 9 FCC Rcd 7442 (1994) (“First Report”); 11 FCC Rcd 2060 (1995) (“Second Report”); 12 FCC Rcd 4358 (1997) (“Third Report”); 13 FCC Rcd 1034 (1998) (“Fourth Report”); 13 FCC Rcd 24284 (1998) (“Fifth Report”); 15 FCC Rcd 978 (2000) (“Sixth Report”); 16 FCC Rcd 6005 (2001) (“Seventh Report”); 17 FCC Rcd 1244 (2002) (“Eighth Report”); 17 FCC Rcd 26901 (2002) (“Ninth Report”); 19 FCC Rcd 1606 (2004) (“Tenth Report”); 20 FCC Rcd 2755 (2005) (“11^th Report”); 21 FCC Rcd 2503 (2006) (“12^th Report”); and 24 FCC Rcd 542 (2009) (“13^th Report”).

4 See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 07-269, Notice of Inquiry, 24 FCC Rcd 750 (2009) (“Notice of Inquiry”) (requesting data as of June 2007). The Commission subsequently adopted a Supplemental Notice of Inquiry requesting data as of June 2008 and June 2009. See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 07-269, Supplemental Notice of Inquiry, 24 FCC Rcd 4401 (2009) (“Supplemental Notice of Inquiry”). See also Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 07-269, Order, 24 FCC Rcd 2524 (2009) (announcing, inter alia, that the Commission would issue a single report for 2007, 2008, and 2009 to bring its reporting up to date).

5 See FCC Launches Data Innovation Initiative (news release), June 29, 2010, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-299269A1.pdf. The Data Innovation Initiative was launched to modernize and streamline how the FCC collects, uses, and disseminates data. As part of the Data Innovation Initiative, the Commission’s Wireline, Wireless, and Media Bureaus released public notices seeking input on what current data collections should be eliminated, what new ones should be added, and how existing collections can be improved. See, e.g., Pleading Cycle Established for Comments on Review of Media Bureau Data Practices, MB Docket No. 10-103, Public Notice, 25 FCC Rcd 8236 (2010). The public notices grew out of an FCC-wide review of FCC systems and processes for data collection, analysis and dissemination led by the Office of Strategic Planning and Policy Analysis. See FCC Agency Reform, presentation before the Commission (Aug. 27, 2009), http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293108A1.pdf; FCC Advances Data Innovation Initiative (news release), Feb. 8, 2011, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-304518A1.pdf.

6 Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 07-269, Further Notice of Inquiry, 26 FCC Rcd 14091 (2011) (“Further Notice”).

7 See id. at 14094-96, ¶¶ 4-5.

8 See 14^th Mobile Wireless Report; 15^th Mobile Wireless Report; Third Satellite Competition Report, supra, n. 3.

9 We assign entities that deliver video content to one of three groups based on the “strategic group” concept used in strategic management that groups companies within an industry that have similar business models or similar combinations of strategies. See Michael E. Porter, Competitive Strategy: Techniques for Analyzing Industries and Competitors 129-155 (Free Press) (1980) (“Porter”). The three groups also may be said to represent the historical development of delivered video where consumers initially had access to over-the-air broadcast television, then a growing number of MVPDs, and most recently the Internet. Our placement of delivered video providers into one of three groups is an organizational convenience to facilitate discussion.

10 We note that, in the past, we reported on web-based Internet video, focusing on the content available over the Internet for downloading and streaming. In this Report, we treat OVDs as a separate group because we have concluded that for most consumers they are not a substitute for MVPD service today, but rather an additional method for viewing video content. See Comcast-NBCU Order, 26 FCC Rcd at 4269-72, ¶¶ 79-85.

11 As described more fully below in Section V, content creators are firms that produce video programming and content aggregators are entities that assemble packages of video programming for distribution.

12 See supra, nn. 14 & 16. Appendix A contains a list of commenters.

13 See, e.g., Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 06-189, Notice of Inquiry, 21 FCC Rcd 12229, 12230, ¶ 2 (2006); Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 05-255, Notice of Inquiry, 20 FCC Rcd 14117, 14118, ¶ 2 (2005).

1 See supra, ¶ 2 & n. 6.

2 Specifically, Section 602 (13) of the Act, as amended, defines MVPD as “a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service (“DBS”), or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming.” 47 U.S.C § 522(13). This Report does not address the extent to which wireless providers of video programming other than DBS, wireless cable system operators, home satellite dishes, and private cable operators should be classified as MVPDs under the Act. As previously noted, the Media Bureau is currently seeking comment on the interpretation of the terms “MVPD” and “channel.” See supra, n. 6.

3 Large and medium-size cable companies that serve many homes in multiple geographic areas by operating multiple cable systems are often referred to as multiple system operators (“MSOs”).

4 Wireless cable systems use the Broadband Radio Service (“BRS”) and Educational Broadband Service (“EBS”) to transmit video programming to subscribers.

5 Private cable operators were formerly known as satellite master antenna (“SMATV”) systems.

6 See infra, n. 32.

7 TV Everywhere is an authentication system whereby certain movies and television shows are accessible online via a variety of display devices including personal computer, mobile, and television – but only if you can prove (or “authenticate”) that you have a subscription to an MVPD. See definition of TV Everywhere, The Interactive TV Institute, http://www.itvdictionary.com/definitions/tv_everywhere_initiative_definition.html (visited Feb. 24, 2012).

8 Different MVPDs use different terms to market video services to other stationary and mobile devices. In this Report, we use the term “TV Everywhere” as a generic term for these video services.

9 Over the period 2006 to 2010, Cox Communications Inc., Bright House Networks, LLC, Cequel Communications Holdings I, LLC d/b/a Suddenlink Communications (“Suddenlink”), and Insight Communications Company, Inc. were privately held cable MVPDs. These companies represented four of the ten largest cable MVPDs at the end of 2010. SNL Kagan, http://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2010Q4&sortcol=subscribersbasic&sortorder=desc (visited Feb 24, 2012).

10 SNL Kagan estimates that at the end of 2011 there are a total of 101.2 million MVPD subscriptions. Of these, cable MVPDs account for 58.3 million subscriptions, DBS accounts for 33.9 million subscriptions, and telephone MVPDs account for 8.3 million subscriptions. Thus, the remaining types of MVPDs account for approximately 0.7 million subscriptions and almost all of these are PCO subscriptions. SNL Kagan, Cable TV Investor: Deals & Finance, Sept. 30, 2011, at 2-3.

11 The Commission’s Mobile Wireless Report collects data on a census block basis and the Commission’s Broadband Report collects data on a census block basis. For video services, however, we do not collect data on a census block basis. Fifteenth Mobile Wireless Report, 26 FCC Rcd 9668, ¶ 2 (2011); Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, Amended by the Broadband Data Improvement Act, GN Docket No. 10-159, Seventh Broadband Progress Report and Order on Reconsideration, 26 FCC Rcd 8008, 8022-23, ¶¶ 23-24 (2011).

12 A large cable MVPD will operate many cable systems of varying sizes. The geographic configuration of a cable system is determined by its physical system, which consists of a cable system technically integrated to a principal headend. The Commission collects cable system data in its Annual Report of Cable Television Systems (FCC Form 325). Only a limited number of cable systems provide data to the Commission. All cable systems with more than 20,000 subscribers are subject to the reporting requirement. The Commission also collects information on a random sample of cable systems with between 5,000 and 20,000 subscribers and a random sample of cable systems with fewer than 5,000 subscribers. Specifically for the filing year 2010, the FCC Form 325 collected data from all 613 cable systems with more than 20,000 subscribers, 279 of the 499 cable systems with 5,000 to 20,000 subscribers, and 170 of the 4,427 cable systems with less than 5,000 subscribers.

13 For example, DISH Network has cooperative arrangements with Verizon, AT&T, CenturyLink, Frontier, and other telephone companies to offer a combination of video, Internet, and telephone services. DISH Network, http://direct.digitallanding.com/default.aspx?PromoID=5003072&campaign=Online&SID=6c4aed07-a7e0-4135-95fe-be624de06eb6 (visited Jan. 20, 2012).

14 AT&T U-verse service launched commercially in San Antonio, TX on June 26, 2006. AT&T, AT&T U-verse Timeline, http://www.att.com/Common/merger/files/pdf/U-verse%20Timeline41907.pdf (visited Feb. 24, 2012). Verizon FiOS service launched in September 2005. Mari Sibley, Timeline: The Evolution of FiOS Tv, MediaExperiences2Go, http://connectedhome2go.com/2010/08/19/timeline-the-evolution-of-fios-tv (visited Feb. 24, 2012).

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