Gulf Over Proposed Set-top Rule Changes Remains Wide, Filings At FCC Show

The divide over FCC-proposed set-top rule changes remains wide, based on filings in docket 16-42 Monday, the deadline for replies, several of which were posted Tuesday. Early-filed comments likewise showed a divide (see 1605230058). Pay-TV industry-side commenters such as Comcast and NCTA cited a record filled with filings against the plan. Proponents of the set-top NPRM dismissed those comments as anti-competitive obstructionism. Opponents “espouse bogus arguments to obfuscate the debate,” said the Computer & Communications Industry Association. “The NPRM drew far more opposition, from a much wider variety of parties, than it did support,” said NCTA.

Pay-TV arguments the FCC is ignoring the existing, successful video app market don’t take into account the restricted availability of apps, said CCIA. “Apps are not as widely available on third-party devices as opponents of the NPRM claim, nor do they provide the same functionality as set-top boxes.” Comcast argued that apps already are accomplishing FCC goals for the set-top proposal. “Video apps have revolutionized the marketplace, expanding consumers’ options for devices and services while still protecting copyright, honoring licensing agreements, and ensuring pay-TV customers enjoy the full privacy rights and remedies Congress intended,” Comcast said. The objections and “parade of horribles” raised by pay-TV opponents of the proposal “could also be leveled against the current CableCARD regime,” TiVo said. Under CableCARD, those horribles never happened, TiVo said.

More than 30 minority programmers and public interest groups signed a letter to Chairman Tom Wheeler endorsing the FCC set-top proposal as boosting diversity. “Unlocking the box represents an end to the buffoonery, gatekeeping and lack of competition our communities have suffered from for far too long,” said GFNTV.com CEO Clifford Franklin in a news release from the signatories. Free Press, the Center For Media Justice, and Eric Easter of the National Black Programmer's Consortium also signed the letter. Other minority programmers feel differently, NCTA said. “Minority-owned and independent programmers and diversity advocates also oppose the NPRM by a wide margin, with most citing grave concerns about misappropriation of their content and violation of their license terms,” NCTA said.

Several commenters highlighted the argument that the set-top proposal is a threat to copyright protection. The pay-TV industry concerns are a smokescreen, said a joint filing from the Electronic Frontier Foundation and a group of copyright scholars. The FCC is “under no obligation to protect copyright holders’ ability to leverage their exclusive rights to control uses that copyright does not regulate, including the presentation, search, navigation, recommendation, and time-shifting of lawfully acquired programming,” said the joint filing. “A competitive navigation device market poses no greater risk of piracy than the open Internet,” said Writers Guild of America, West. “The FCC’s proposal undermines a creative economy that employs millions of U.S. workers, generates billions of dollars in exports, and currently offers consumers an ever-expanding number of viewing choices,” said MPAA.

The FCC set-top plan "fails to satisfy the requirements of reasoned decision-making,” said a joint filing from several programmers, including A&E, CBS, 21st Century Fox and Viacom. “Comcast’s commanding presence in the Motion Picture Association of America and the Recording Industry Association of America helps put into context the misleading and bogus copyright and piracy claims raised by the cable giant,” said the Consumer Video Choice Coalition.

The FCC doesn’t have the authority to accomplish the changes outlined in the proposal, several commenters said. “The record leaves little doubt that the Set-Top Box Mandate would exceed the Commission’s limited authority under Section 629 and violate other provisions of the Communications Act, substantial copyright and other intellectual property protections, and the First Amendment,” Comcast said. The Satellite Television Extension and Localization Act “did not grant any authority” beyond receiving a report from the Downloadable Security Technology Advisory Committee, NCTA said. “It certainly did not call for a new technology mandate or for an NPRM diametrically opposed to the ‘technology and platform neutral’ directive from Congress.”

Whatever the FCC does, it hasn’t established a record on how the set-top proposal would affect DBS, Dish Network and EchoStar said together. Though the FCC acknowledged satellite carriers won’t be able to comply with the rules proposed in the NPRM without a “gateway device” in consumer homes, the item “nowhere even attempts to explore the challenges, much less propose rules, arising from the need for such a gateway device,” Dish said. Satellite multichannel video programming distributors “have had neither notice of nor opportunity to comment upon any such rules, contrary to the requirements of the Administrative Procedure Act,” said the company.

Advocates for community TV discussed public, educational and government access channel discovery. The FCC proposals aren't “compelled speech” as some have suggested, said the Alliance for Community Media. “Much as PEG channels have been found to be speech in the public interest and not ‘compelled speech’ on MVPD systems, so too is their data -- their speech -- about those program channels. This speech of PEG channels is currently being prevented from distribution to subscribers in numerous communities across the country and it is in the government’s interest to put forward these reasonable and modest solutions.” Service discovery data about channels must include program descriptions, it said.

“This rulemaking is complicated,” said NATOA. “To assert otherwise is to ignore the many issues that have been raised concerning the ramifications of the Commission’s latest proposal,” it said. Given earlier failed attempts to open the set-top box, the FCC should take its time studying the record and “undertake any necessary studies in order to ‘get it right.’” CALinnovates said the FCC might cause more harm than good if it proceeds on its current course. The California group, which includes C-level executives, political leaders and entrepreneurs, worries “about the harm this will cause three categories of players in the industry: the innovators, the consumers, and the content creators,” it said. “We hope that the Commission will take these problems seriously and resist causing irreparable damage to such an exciting and evolving industry.”