New mobile TV order raises retransmission, DVB-H issues

In an attempt to clarify the rules for offering television services over wireless carriers’ networks, the CRTC may have further muddied the operating environment by issuing two separate exemption orders for such services since they were first launched two years ago.Prompted by the pending launch of mobile video services by Rogers Wireless, Telus Mobility and Bell Mobility in the spring of 2005, the commission sent letters to all three carriers – as well as wireless multipoint BDU Look Communications Inc. – asking each to outline the services and explain how they fit into the regulatory environment. Those services were to feature programming from a plethora of Canadian and American specialty channels provided by MobiTV Inc. of Emeryville CA.After two rounds of consultation with the carriers as well as broadcasters and other industry players, the commission released Public Notice 2006-47 in April 2006, which ruled that the mobile video services offered by the three carriers and Look fall under an existing exemption order from 1999 – Public Notice 1999-197, commonly known as the New Media Exemption Order – which covers broadcasting services accessed and delivered over the Internet.That wasn’t the end of the matter, however: the CRTC also took into consideration comments noting that such services likely wouldn’t serve as an alternative to conventional broadcasting, because of the limited screen size and battery life of mobile devices. Additionally, the commission believed that networks would continue to evolve to the point where such services might not be delivered over the Internet as it’s understood today. The regulator therefore started a second process to craft an additional exemption order that would cover such services in the absence of Internet-based access and delivery. It released final details of that order earlier this month, in Public Notice 2007-13.A Tale Of Two Exemptions"We were delighted that the commission found that our existing service was delivered over the Internet, I thought it was terrific that the exemption order was offered up even for services that aren’t over the Internet," says Ken Engelhart, VP of regulatory affairs at Rogers Communications Inc., referring to Rogers Wireless’ status under both PN 2006-47 and PN 2007-13.In addition to freeing mobile TV services from the constraint of delivery and access via the Internet, PN 2007-13 also lays out several other stipulations. In order to be eligible, undertakings must: be eligible for a broadcast licence, but not necessarily possess one; deliver only point-to-point services, with a separate stream to each individual user’s device; deliver to mobile devices such as cell phones and personal digital assistants (PDAs); and finally, obtain consent from broadcasters to retransmit their signal."It’s quite complementary in to the original decision on and that’s how the services are being delivered," echoed Marc Choma, director of communications at the Canadian Wireless Telecommunications Association, in a recent interview with CNM sister publication Report on Wireless. "Individual companies may have different concerns, but on an industry-wide level there hasn’t been any concerns identified."There, Choma is correct: individual companies do have concerns with the newest exemption order. "We were surprised and disappointed to see that the commission decided to retain its concept of retransmission consent for over-the-air broadcasters for this particular exemption order," says Telus Corp.’s assistant VP of broadband policy Jay Thomson.He notes that both Telus and the CWTA expressed concerns during the consultation rounds for PN 2007-13 that the commission didn’t have the jurisdiction to impose a "prior consent" condition, which would fly in the face of section 31 of the Copyright Act. That section allows for retransmission of the programming in a local over-the-air signal, but retransmitters must pay a Copyright Board of Canada-approved tariff for use of programming in out-of-market signals. If the commission added a condition to the contrary in PN 2007-13 – namely, the requirement to obtain prior consent from broadcasters – it would be flying in the face of the Copyright Act and exceeding its authority by making a new copyright right, something only a Parliamentary amendment to the act can do.And while a new package of amendments to update the Copyright Act has been rumoured to be forthcoming for some time, Thomson says the question of creating a right requiring consent to rebroadcast local signals was addressed in the last copyright reform round – Bill C-32, which came into force in 1999. "Parliament has clearly considered whether broadcasters should have a signal right, and clearly rejected it," he says. "There’s been no indication that the government, either the past or the present government, had any intention of revisiting that particular issue."Last year’s round of broadcast treaty negotiations at the World Intellectual Property Office, which sought to increase the rights of broadcasters vis-à-vis retransmission, provides even further basis for an argument that the commission shouldn’t be playing the role of copyright policy-maker, Thomson adds. "It’s certainly that’s being considered by governments at an international level, and the commission shouldn’t be stepping in and trying to pre-empt those international discussions," he says. "Canada has at the those...discussions that it does not want a retransmission right introduced in Canada."To make its case for adding a condition requiring prior programmer consent, the CRTC drew on its digital migration policy for small cable systems in the analysis and determinations section of PN 2007-13. But Thomson says its "bizarre" to apply rules requiring programmer consent for small cable providers to the world of mobile TV services. "For them to make that leap without explaining or addressing the differences, I think…was certainly lacking in some systematic thought," he says.The Devil In The (DVB-H) DetailsFor his part, Engelhart says Rogers hadn’t intended to rebroadcast over-the-air TV signals on its wireless data network, so questions of retransmission rights and broadcaster consent are moot. However, he says the point-to-point transmission stipulation was "a disappointment," noting it rules out Digital Video Broadcasting – Handheld (DVB-H) and other emerging mobile broadcasting standards from being covered under the exemption order."I always assumed that when we offered things like DVB-H we would need to go back and get a broadcasting licence," Engelhart says. "So, I can’t say that I was too surprised or disappointed by the commission’s language, or the wording of the order."Engelhart's use of "when" rather than "if" is intriguing: while Rogers hasn’t made a definitive announcement that it will deploy a DVB-H-based service in the future, "I’m assuming that we’ll offer the stuff one day," he says. "We don’t have a technology or a business plan or a product or anything yet, but we’re looking at all the options."While Thomson says he finds the language in PN 2007-13 "disturbing" and Telus hasn’t decided what, if any, official response it will make, he adds the latest exemption order is "largely theoretical" due to its narrow scope and likely won’t affect either Telus’ existing or future mobile video offerings. After all, he points out, the carrier’s current MobiTV-powered offering is already exempt under PN 2006-47."An irony is that this particularly exemption order probably will never be relied upon, by anyone," Thomson says. "We don’t ever – certainly at this point – anticipate offering a service that’s not accessed and distributed over the Internet and subject to , which doesn’t have any reference to retransmission consent, and is a very wide open and appropriate exemption order."

New mobile TV order raises retransmission, DVB-H issues

Broadcast | February 21, 2007

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