FCC Whacks TV Max [telecom]

Posted on CommLawBlog on June 26, 2013 by Paul J. Feldman

| No consent for retransmission of TV signals? That'll be $2.25 million, | please. | | If you've ever wondered what would happen if you retransmitted the | programming of TV stations without their consent, and then dissembled | about it to the FCC, listen up. If you go that route, you could be | looking at a fine north of $2,000,000. That's right - two MILLION | dollars plus. | | Do we have your attention? | | We know about the likely penalty thanks to a Notice of Apparent | Liability For Forfeiture and Order (Order) - directed to TV Max, Inc. | and its affiliates and its individual controlling principals - for | violating Section 325(b) of the Communications Act and Section 76.64 | of the Commission's rules. Those sections lay out the general | retransmission consent rules governing multichannel video programming | distributor (MVPD) carriage of over-the-air TV signals other than | through the "must-carry" process. According to the Order, TV Max | retransmitted the signals of six broadcast stations without obtaining | their consent. For doing so, TV Max is looking at a proposed fine of | $2,250,000. Since the Commission has penalized MVPD's for | retransmission consent violations only a couple of times in the | past - and then only in the low five-figure range of $15,000 (reduced | from a maximum potential of $250,000 or so) - we can probably assume | that TV Max really ticked off the FCC.


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According to Bloomberg Businessweek:

| TVMAX Holdings, Inc., doing business as Wavevision, provides broadband | Internet and cable TV services through fiber optic lines to residential | customers, and small and medium-sized businesses. It serves customers in | Arizona, Maryland, Texas, and Delaware. TVMAX Holdings, Inc. was | formerly known as OpTel, Inc. and changed its name to TVMAX Holdings, | Inc. in 2002. The company was founded in 1993 and is based in Houston, | Texas. TVMAX Holdings, Inc. operates as a subsidiary of Videotron Ltd.

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The FCC's definition of a "Cable system or cable television system" specifies, among other things:

| 76.5 Cable system or cable television system. A facility consisting of | a set of closed transmission paths and associated signal generation, | reception, and control equipment that is designed to provide cable | service which includes video programming and which is provided to | multiple subscribers within a community, but such term does not include: | ... | (2) A facility that serves subscribers without using any public | right-of-way...

47 CFR 76.5(a)(2)]
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According to the CommLawBlog post, TV Max claimed that the signals had "not been carried on any fiber ring owned or controlled by TV Max." Thus, TV Max claimed, because it didn't own the fiber ring, its facilities did not cross public right of way. Presumably, the fiber ring itself -- whoever owned it

-- did cross public right-of-way.

The FCC didn't accept that claim.

I wonder how this will affect Aereo. Does the connection that Aereo provides between each customer's unique antenna and the customer's premises cross public right-of-way?

Neal McLain

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Neal McLain
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