NCTA and AT&T Find Flaws in FCC Set-Top Plan, Which TiVo Supports

The FCC set-top plan has numerous legal and policy flaws, said AT&T and NCTA in a legal analysis filed in docket 16-42 Monday. The draft plan would “mandate that each [multichannel video programming distributor] also build and maintain apps for an indefinite period of time and for an indeterminate number of retail platforms that have shipped a minimum number of units, regardless of the nature of the device or platform,” the filing said. “That would impose a substantial and apparently perpetual burden on MVPDs with no mechanism to reimburse MVPDs even for cost, and thus inevitably leading to increased prices for all subscribers.” The item would “create new barriers to innovation” by “demanding that all MVPD networks conform their highly varied systems to new, to-be-invented open standards” and by “requiring government pre-approval for any and every desired variation or amendment in licensing,” the filing said. The requirement that all MVPDs can't favor their own programming in the universal search function would “prohibit MVPDs from presenting their many clickable options for MVPD content offerings,” the filing said. The item also has numerous legal flaws and “cannot be sustained as a matter of law or sound public policy,” the filing said. “At no time has the Commission provided sufficient notice for parties to learn many significant aspects of the Chairman's new proposal or to address it adequately.” The license proposed in the FCC set-top box draft item is similar to the Dynamic Feedback Arrangement Scrambling Technique (DFAST) license used under existing CableCARD rules, TiVo said in a filing posted Monday to docket 16-42. The company Wednesday lobbied Commissioner Mike O’Rielly, aides to Commissioner Jessica Rosenworcel and Commissioner Mignon Clyburn, Office of Strategic Planning Chief Paul de Sa, Chief Technologist Scott Jordan, aides to FCC Chairman Tom Wheeler, and staff from the Office of General Counsel and the Media Bureau. A DFAST license “is not a copyright license at all,” TiVo said. “The standard license between the MVPDs and the competitive device maker that uses the MVPD-controlled app is merely subject to FCC oversight in the event programmers and MVPDs engage in anticompetitive or anti-consumer conduct.” Third-party devices would require certain information to provide the universal search function the FCC draft item is aiming for, TiVo said. The information required would include data such as “channel information (if any), program title, rating/parental control information, program start and stop times (or program length, for on-demand programming)” TiVo said. The search function also would need “entitlement and price information” and “information regarding search requests and past viewership” to “provide personalized and predictive search and recommendations,” TiVo said. The White House is backing the draft (see 1609190050).