OTT Raised by Fans, Foes of FCC Leased Access Deregulation

and Democratic commissioners Thursday. Commissioners adopted 3-2 the leased access item on their meeting agenda. Big technology and market changes in the video distribution world "cast substantial doubt on the constitutional foundation for our leased access rules," said the draft order. An accompanying Further NPRM would seek comment on whether the remaining leased access requirements can withstand First Amendment scrutiny given those video market changes. The agency is echoing an often-repeated NCTA argument that public interest obligations violate cable's right as a publisher, emailed Alliance for Community Media President Mike Wassenaar. Courts rejected the "zombie idea ... and yet it keeps moving on inexorably," he said. Commissioners Geoffrey Starks and Jessica Rosenworcel dissented in part on the constitutional issues. Starks said the item's First Amendment analysis "goes too far." He said the abundance of over-the-top outlets doesn't necessitate a reinterpretation of the agency's First Amendment principles on cable. Commissioner Mike O'Rielly said the item's affirmation that OTT video is a substitute for traditional video distribution should inform future media actions. He said after the meeting that such a market-based OTT analysis could be important in many proceedings. The leased access rules regime is "the Betamax ... of FCC video regulation," Chairman Ajit Pai said: "This is real progress, even against the backdrop of serious concerns that have been raised (concerns that I share) about the constitutionality of this entire regime." Asked after the meeting whether he philosophically saw First Amendment issues with other existing media carriage rules, Pai said, “I wouldn’t read more into my comments” beyond their applicability to the leased access proceeding.