Sec. 201. Protections for online video distributors
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Title VI of the Communications Act of 1934 ( 47 U.S.C. 521 et seq. ) is amended by adding at the end the following: In this part: For purposes of sections 663, 664, and 667, the term affiliated with means that the Internet service provider, multichannel video programming distributor, online video distributor, or video programming vendor, as appropriate, directly or indirectly, is owned or controlled by, owns or controls, or is under common ownership or control with another Internet service provider, multichannel video programming distributor, online video distributor, or video programming vendor, as appropriate.
For purposes of this paragraph, the term own means to own an equity interest, or the equivalent thereof, of more than 10 percent. The term video programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, whether or not such programming is delivered using a portion of the electromagnetic frequency spectrum. The purposes of this part are— to promote the public interest, convenience, and necessity by increasing competition, innovation, and diversity in the video programming marketplace; to enhance consumer access to online video distribution platforms and consumer choice in online video programming; and to increase the availability of video programming on all platforms, including Internet-based platforms.
It shall be unlawful for a designated distributor to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which are to hinder significantly or prevent an online video distributor from providing video programming to consumers, including over any platform or device capable of delivering that online video distributor's content to consumers. Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to implement this section.
At a minimum, the regulations under this section shall— specify the conduct that constitutes a prima facie violation of subsection (a); and establish effective safeguards to prevent a designated distributor from— unduly or improperly influencing the decision of any other entity to make a television set or other customer premises equipment incompatible with the services provided by any online video distributor; unduly or improperly using its own customer premises equipment to discriminate against, or otherwise favor its own services over, the service provided by any online video distributor; unduly or improperly influencing the decision of any other entity to sell, or the prices, terms, and conditions of the sale of, video programming to any online video distributor; and providing an incentive to any entity in an attempt to deny video programming to an online video distributor.
Subject to paragraph (2), a designated distributor shall not be prohibited from— imposing reasonable requirements for creditworthiness, offering of service, and financial stability and standards regarding character and technical quality; establishing different prices, terms, and conditions to take into account economies of scale, cost savings, or other direct and legitimate economic benefits reasonably attributable to the number of subscribers served by the online video distributor; and imposing reasonable requirements to ensure the security of the video programming being provided to the online video distributor, including means to authenticate the right of the distributor’s subscribers to access the programming.
An exception under paragraph (1)— shall be related to the substantial, real, and legitimate business concerns of the designated distributor; and may not be used in an anticompetitive manner. In this section, the term designated distributor means— a multichannel video programming distributor affiliated with an Internet service provider; an online video distributor affiliated with an Internet service provider; or a video programming vendor with significant market power. The Commission shall establish rules for determining whether a video programming vendor has significant market power under paragraph (1)(C).
It shall be unlawful for a multichannel video programming distributor or an online video distributor— to include in a contract with any video programming vendor a provision that serves as a substantial disincentive for the video programming vendor to sell its content to an online video distributor; to use any practice, understanding, arrangement, or other agreement with a video programming vendor that has the effect of causing the video programming vendor to face a substantial disincentive to sell its content to an online video distributor; or to enter into a contract with a video programming vendor that has the effect of preventing an online video distributor from making the video programming vendor's content available on any platform or device capable of delivering that distributor's content to its subscribers.
A multichannel video programming distributor or an online video distributor may not include in any contract with a video programming vendor any provision that requires the multichannel video programming distributor or online video distributor, as applicable, to be treated in material parity with other similarly situated multichannel video programming distributors or online video distributors with regard to pricing or other terms and conditions of carriage of video programming.
A multichannel video programming distributor or an online video distributor may not retaliate against— any video programming vendor for making its video programming available to an online video distributor; any online video distributor for obtaining video programming from a video programming vendor; or any entity for exercising a right under this Act. Notwithstanding subsection
(a)or any other provision of this part, a multichannel video programming distributor or an online video distributor may enter into an exclusive contract with a video programming vendor for video programming provided by that video programming vendor if the contract does not exceed the limits or violate the prohibitions under subsection (e). The Commission shall adopt limits on— the ability of a multichannel video programming distributor or an online video distributor to enter into any contract for video programming that includes an exclusivity provision that substantially deters the development of an online video distribution alternative; and the ability of an online video distributor to enter into any contract for video programming that includes an exclusivity provision that substantially deters the development of an online video distribution alternative. The Commission shall prohibit— a multichannel video programming distributor from entering into an exclusive contract with a video programming vendor that is affiliated with the multichannel video programming distributor; and an online video distributor from entering into an exclusive contract with a video programming vendor that is affiliated with the online video distributor. The Commission shall establish criteria for determining whether an exclusive contract for programming substantially deters the development of an online video distribution alternative. In establishing the criteria under subparagraph (A), the Commission shall consider the totality of the circumstances surrounding the contract, including— the duration of the exclusivity period; the effect of the exclusive contract on capital investment in the production and distribution of video programming; the time period after initial first-day distribution of video programming to consumers when the multichannel video programming distributor or the online video distributor is granted exclusive access to distribute the programming; and the likelihood that the exclusive contract will enhance diversity in programming on video distribution platforms. A multichannel video programming distributor or an online video distributor may not enter into an agreement that limits or prohibits a video programming vendor from making its video content available to consumers free over the Internet. The prohibition under paragraph
(1)shall not apply if the duration of the agreement is 30 days or less. A video programming vendor may establish different prices, terms, and conditions for its video programming if, taking into account economies of scale, cost savings, or other direct and legitimate economic benefits that are reasonably attributable to the number of subscribers served by an online video distributor, the prices, terms, and conditions— are related to substantial, real, and legitimate business concerns of the video programming vendor; and are not used in an anticompetitive manner. Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to specify particular conduct that is prohibited by this section. The regulations under this section shall establish, at a minimum— effective safeguards to prevent any activity prohibited by this section; and complaint and contract review procedures to facilitate the Commission's ability to determine if a multichannel video programming distributor, a video programming vendor, or an online video distributor has violated this section. Subject to paragraph (2), nothing in this section shall affect any contract, understanding, or arrangement that was entered into on or before December 1, 2013. No contract, understanding, or arrangement entered into on or before December 1, 2013, that violates this section shall be enforceable by any person after the date that is 3 years after the date of enactment of the Consumer Choice in Online Video Act . A contract, understanding, or arrangement that was entered into on or before December 1, 2013, but that is renewed or extended after the date of enactment of the Consumer Choice in Online Video Act shall not be exempt under paragraph (1). Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall commence a proceeding to determine the additional steps it should take, in the public interest, to foster the ability of online video distributors to gain access to video programming, offer innovative services, and compete with multichannel video programming distributors. The Commission shall not compel a video programming vendor to sell its video programming to an online video distributor as part of any rules adopted under this section. It shall be unlawful for a broadcast television licensee or television network— to refuse to negotiate with an online video distributor for carriage of the broadcast television licensee’s or the television network’s content, as applicable; or to place any restriction on an online video distributor's ability to make the broadcast television licensee’s or the television network’s content, as applicable, available on any platform or device that is capable of delivering the online video distributor’s content to its subscribers. The Commission shall determine what constitutes a refusal to negotiate under subsection (a). The Commission may require a broadcast television licensee or television network to engage in good faith negotiations with an online video distributor. The Commission shall define good faith for purposes of this subsection. It shall be unlawful for a broadcast television licensee to provide an over-the-air signal that differs from a retransmission of that signal provided to a multichannel video programming distributor or an online video distributor. Subparagraph
(A)shall not apply if— the variation in the 2 signals consists of a change to 1 or more commercial advertisements of not more than 60 seconds in duration embedded in a broadcast television licensee’s signal; and the broadcast television licensee is not using the variation under clause
(i)to increase the overall amount of advertising time in its over-the-air signal. Notwithstanding any other provision of this Act, except subparagraph (C), an entity may rent to a consumer access to an individual antenna to view over-the-air broadcast television signals transmitted from that antenna— directly to the consumer over the Internet or another IP-based transmission path; or to an individual data storage system, including an online remote data storage system, for recording and then made accessible to that consumer through the Internet or another IP-based transmission path. An antenna rental service described under subparagraph
(A)shall be exempt from paying retransmission consent fees under section 325 of this Act to any broadcast television station whose signal is received by the individual antenna and retransmitted to the subscriber. An antenna rental service described under subparagraph
(A)shall— only provide a subscriber with access to over-the-air broadcast television signals received by an individual antenna located in the same designated market area (as defined in section 671 of this Act) in which that subscriber resides; and make available to a subscriber all over-the-air broadcast signals that are received by the individual antenna rented by that subscriber, unless a signal is of such poor quality that it cannot be transmitted to the consumer in a reasonably viewable form. It shall be unlawful for any entity selling or otherwise providing video programming to be transmitted by a broadcast television licensee or television network to include in any contract, agreement, understanding, or arrangement with that licensee or network a limitation on the ability of that licensee or network to comply with the requirements of this section. Subject to subparagraph (B), nothing in this section shall affect any contract, understanding, or arrangement that was entered into on or before December 1, 2013. No contract, understanding, or arrangement entered into on or before December 1, 2013, that violates this section shall be enforceable by any person after the date that is 3 years after the date of enactment of the Consumer Choice in Online Video Act . A contract, understanding, or arrangement that was entered into on or before December 1, 2013, but that is renewed or extended after the date of enactment of the Consumer Choice in Online Video Act shall not be exempt under subparagraph (A). Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to implement this section. The Commission shall not compel a broadcast television licensee or television network to sell its video programming to an online video distributor as part of any rules adopted under this section. It shall be unlawful for a designated Internet service provider to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which are to hinder significantly or to prevent an online video distributor from providing video programming to a consumer. Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to specify particular conduct that is prohibited by subsection (a). The Commission's regulations under this section shall ensure, at a minimum, that a designated Internet service provider does not— block, degrade, or otherwise impair any content provided by an online video distributor; unreasonably discriminate in transmitting the content of an unaffiliated online video distributor over the designated Internet service provider's network; provide benefits in the transmission of the video content of any company affiliated with the Internet service provider through specialized services or other means, or otherwise leverage its ownership of the physical delivery architecture to benefit that affiliated company in a way that has the effect of harming competition from an unaffiliated online video distributor; or use billing systems, such as usage-based billing, in a way that deters competition from unaffiliated online video distributors that may be in competition with the Internet service provider's or its affiliate's services. In this section, the term designated Internet service provider means an Internet service provider that is affiliated with a multichannel video programming distributor, an online video distributor, or a video programming vendor. No video programming vendor that has made available its video programming to consumers online may restrict access to that online video programming for a subscriber of a multichannel video programming distributor or its affiliate, or an online video distributor or its affiliate, during the time that vendor is involved in a dispute with such distributor. If a video programming vendor requires a consumer to purchase access to its online video programming through a contract with a multichannel video programming distributor or an online video distributor then that vendor may restrict access to that online video programming during the time that the vendor is involved in a dispute with that distributor. The exception under this subsection shall apply only to a subscriber to video services provided by a multichannel video programming distributor or an online video distributor involved in the dispute and not to a subscriber to any other service provided by that distributor or its affiliate. Any entity that is aggrieved by a violation of this section may bring a civil action in a United States district court or in any other court of competent jurisdiction. The court may— grant a temporary or final injunction on such terms as it may deem reasonable to prevent or restrain violations of this section; award any damages it deems appropriate; and direct the recovery of full costs, including awarding reasonable attorneys’ fees to an aggrieved party who prevails. In this section: The term available online means both available over the Internet and through applications, software, or other similar services on a mobile device. The term dispute includes— a dispute over carriage of the programming provided by a video programming vendor to a multichannel video programming distributor or online video distributor; and a dispute over carriage of the programming provided by a television licensee or television network under section 325(b) of this Act. The term entity that is aggrieved includes— a consumer whose access to online video programming has been restricted in violation of this section; and a multichannel video programming distributor or its affiliate, or an online video distributor or its affiliate, that has had a subscriber's access to online video programming restricted in violation of this section. Any online video distributor aggrieved by conduct that it alleges constitutes a violation of this part, or the regulations of the Commission under this part, may commence an adjudicatory proceeding at the Commission. The Commission may authorize interim remedies during the pendency of a complaint. Upon completion of an adjudicatory proceeding under this section, the Commission shall have the power to order appropriate remedies, including, if necessary, the power to establish prices, terms, and conditions of sale of programming to the aggrieved online video distributor. The remedies provided in paragraph
(1)are in addition to and not in lieu of the remedies available under title V or any other provision of this Act. In promulgating regulations to implement this part, the Commission shall— provide for an expedited review of any complaint made under this part, including a procedural timeline to conclude the review of each complaint not later than 180 days after the date the complaint is filed; establish procedures for the Commission to collect any data, including the right to obtain copies of all contracts and documents reflecting any practice, understanding, arrangement, or agreement alleged to violate this part, as the Commission requires to carry out this part; and provide for penalties to be assessed against any person filing a frivolous complaint under this part. .
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Sec. 201
Protections for online video distributors
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