FCC Summoning Industry Meetings Over Downloadable Security Proposal

The FCC has been summoning for meetings industry entities associated with set-top boxes and the Downloadable Security Technology Advisory Committee, said industry officials and a series of ex parte filings. Groups pushing for a rulemaking to come out of the DSTAC's report are pushing to get an item on the agenda of an FCC meeting, while multichannel video programming distributors and others opposed to the FCC's acting on the report are trying to keep the rulemaking process from proceeding, an attorney following the DSTAC process told us.

The Consumer Video Choice Coalition, Dish Network, EchoStar, TiVo and a group of content companies that include Discovery, Disney and Scripps have been in communication with the commission about the DSTAC proposals, according to ex parte filings. Industry officials told us a DSTAC item is expected to go before the commission soon (see 1512150072), and Chairman Tom Wheeler has said the committee wasn't formed as a purely academic exercise.

The FCC shouldn't use the DSTAC proposals favored by the Consumer Video Choice Coalition as the basis for a rulemaking on downloadable security, said Disney, Fox, NBCUniversal, Time Warner, Viacom and the other content companies in a joint letter to the commission. The coalition proposal would “permit the abrogation by third parties of uniquely and carefully interrelated elements of licensing agreements,” the content companies said. Those elements include “channel position, channel line-ups, neighborhooding, branding, and disaggregation of content from metadata,” the content companies said, echoing a concern voiced by Comcast and others on the MVPD side of the issue since the DSTAC began. By making the services that companies offer less singular, the FCC would “undermine programmers’ incentives to develop and market creative content and innovative services for the benefit of consumers,” the content companies said. They also included A&E Television Networks and AMC Networks.

TiVo has never been bound by the programming and licensing agreements referenced by the content companies and MVPDs, said TiVo in a call with FCC staff Jan. 11. Consumers have been able to use TiVo and CableCARD for over a decade “without resulting in any of the parade of horribles” raised by the MVPDs, the company said. “Competitive device providers are not and should not have to be bound to programming contracts entered into by MVPDs to which they were not party," TiVo said. “The terms of such programming contracts are confidential and it makes no sense for competitive device providers to have to adhere to licensing terms they have no way of knowing.” TiVo complies with a license that's part of CableCARD, which requires that competitive devices protect the security of and don't impair the delivery of MVPD services, it said. A future competitive device solution could incorporate a similar license, TiVo said.

Disagreements whether the coalition proposal would affect other companies' licensing agreements and copyright agreements are policy matters rather than technical issues, and the proper proceeding for discussing them would be in an NPRM proposing to adopt the coalition proposal, said Public Knowledge Senior Staff Attorney John Bergmayer. Public Knowledge is part of the CVCC.

The FCC “should decline to initiate a rulemaking and should continue on the path it chose in 2010 to allow the market to deliver new retail options to consumers,” said Davis Wright cable attorney Paul Glist in an ex parte filing on behalf of the NCTA and several MVPDs. The coalition proposal -- which the MVPDs refer to as “AllVid,” connecting it back to an unsuccessful attempt to replace CableCARD -- would compromise consumer privacy protection, “fundamentally compromise” the video programming marketplace, and unnecessarily take up bandwidth, the ex parte said: “AllVid would impose serious harm on the entire video ecosystem, stifle innovation and impede the rapidly growing expansion of the apps that currently support the delivery of multichannel service on more retail devices than there are MVPD set-top boxes.”

There's no requirement under the coalition proposals that would require third-party device manufacturers to support “the interactive MVPD apps and features that are part of the modern MVPD service consumers are paying for,” AT&T said in an ex parte filing. Under the “AllVid proposal,” it said, consumers could lose features proprietary to individual MVPD services, such as being able to instantly follow Fantasy Football statistics.

Dish and EchoStar said in several joint ex partes they don’t oppose the FCC pursuing the coalition proposal for navigation devices, as long as practical concerns such as accessibility compliance and how MVPDs should handle customer service calls about problems with a third-party device are addressed. “The Commission should structure any AllVid requirements to encourage ongoing, robust MVPD competition and to complement, rather than replace, market forces and industry standards initiatives,” Dish and EchoStar said.

MVPD arguments that the coalition proposal is technically unfeasible or theoretical are unfounded, said the CVCC in a meeting with Media Bureau staff Tuesday, according to an ex parte filing. “AllVid is by no means off-the shelf technology,” said NCTA. “It would require new invention and changes in network architecture, diverting MVPD resources and investment from creating apps for more platforms.” The coalition proposal wouldn't require “re-architecture of MVPD systems” CVCC said. “It is simply software that could run on existing equipment in the home, such as a cable modem or satellite receiver box, or could run in the cloud.” MVPDs “would have choices about how to implement the virtual headend on their systems,” the CVCC said.