Pay-TV, Web Interests Disagree on Next FCC Steps After DSTAC Report

With STELAR requiring the FCC Downloadable Security Technical Advisory Committee to produce a report on a downloadable security successor to CableCARD a week after its final meeting this Friday, committee members and industry officials are divided on whether the DSTAC efforts should lead to any further action, they said in interviews this week. The Satellite Television Extension and Localization Act Reauthorization-mandated report will offer two proposals, one backed by the committee's pay-TV interests and one backed by Public Knowledge and TiVo (see 1508040062). Officials on the pay-TV side said they hope the FCC takes no further action after receiving the report. The other side wants further commission action.

The commission should let the market determine the future of downloadable security, said an official who works for a DSTAC member company. “It's not a failure for a technical advisory committee to recommend doing nothing,” said longtime cable industry official and Beyond Broadband Technology Director-Strategic Communications and Development Steve Effros, who isn't a member of the DSTAC but has closely followed the process. STELAR doesn't require any further FCC action after the DSTAC's report is circulated to the eighth floor, agency officials have told us.

The other side of the DSTAC divide, the Consumer Video Choice Coalition -- which includes Google, Public Knowledge and TiVo -- thinks the purpose of the DSTAC would be unfulfilled if the FCC does nothing. “It would be very cynical to believe that Congress asked the FCC to form a task force and waste nine months for no reason,” TiVo General Counsel Matt Zinn said. Since the integration ban was sunsetted as part of STELAR, Congress intended the FCC to take action to replace it, Zinn said.

The statutory language required the FCC only to create the DSTAC and not to pursue further action, NCTA General Counsel Neal Goldberg said. Though Sen. Ed Markey, D-Mass., offered an amendment to require the FCC to issue an NPRM, that proposal was withdrawn and wasn't part of the final law, Goldberg said. “Look at the language and legislative history of the statute." Though Sens. Richard Blumenthal, D-Conn., and Markey asked the FCC to issue an NPRM after release of the DSTAC report, Goldberg said that’s “hardly the same as a congressional directive. In fact, a letter to [FCC] Chairman [Tom] Wheeler from bipartisan House sponsors of the legislation cautioned him against pursuing the path TiVo is urging the FCC to follow.”

The DSTAC process hasn't led to an industry consensus, but showed the proposals for a successor to CableCARD are technically feasible and provided the material for the FCC to proceed with a rulemaking, Public Knowledge Senior Staff Attorney John Bergmayer said. “We've had words from both sides. It’s up to the FCC to do what they can from this.”

The FCC doesn’t need to regulate downloadable security because the video device market is working without the need for regulation, Goldberg said. “Consumers now have available to them more retail video devices than ever before, over which they can receive more and more video programming -- anytime, anywhere. And MVPDs and others keep developing new methods to reach even more retail devices,” Goldberg said of multichannel video programming distributors.

Past FCC efforts to create a successor to CableCARD haven't led to much concrete action, but Wheeler is perceived as someone who might try to act on the issue, officials on both sides told us. “He's got a 50 percent chance of winning in court,” Effros said, saying Wheeler has been willing to tackle contentious matters before. Wheeler is seen as unafraid to anger MVPDs, a consumer electronics industry official said.

Other industry officials, including Effros, told us they that believe the issues tackled by the DSTAC are too contentious and technical for the FCC to take action. The commission would likely need to use the DSTAC report as a basis for a notice of inquiry or public notice seeking comment, and the comments that came in would show a deep divide, as has the DSTAC process, a CE official said. The FCC is likely to want an industry consensus before it takes action, the official said. Such a consensus is very far away, another industry official said. By the time such a proceeding was complete, the security solution would likely be hopelessly out of date, the official said.

Numerous unanswered questions will be raised in the DSTAC report, and it would be extremely difficult to answer them through a comment proceeding, CE and MVPD industry officials said. Legal and technical aspects of the recommendations in the DSTAC could make them hard to implement, because of complications involving privacy concerns and usage rights, the industry officials said.

Friday's meeting is largely seen as a formality, DSTAC officials said. With the content of the final report and the specifics of the two proposals largely decided, the meeting is primarily in place to allow for a formal vote, they said.