September 26, 2013
By Amy Maclean
NCTA is speaking out against TiVo's petition for the FCC to impose regulations on cable ops that the DVR maker says would ensure that consumers can access cable content on retail devices via CableCARDs, with the trade group calling such rules outdated and unnecessary. In Jan, the DC Circuit Appeals court ruled the FCC lacked authority to impose encoring rules on satellite companies, vacating the entire order, including provisions that applied to cable. In July, TiVo asked the FCC to reinstate the vacated cable rules that are based on the 2003 Plug-and-Play order ( Cfax , 7/17).
"Although TiVo claims that it merely seeks to 'reinstate' these vacated regulations, the petition in fact requests something very different... that the Commission impose the encoding rules just on cable operators, but not their MVPD competitors," NCTA told the FCC in comments this week. TiVo also asked the FCC to clarify that its 2010 CableCARD rules remain in effect.
While programmers largely did not participate in the creation of the Plug-and-Play order, Disney, Viacom, Fox, CBS and Time Warner lined up to support NCTA. "While the universe of [unidirectional cable plug-and-play] devices has remained small since 2003, continued cable operator support for already-deployed devices, in addition to a new product announcement by Samsung since the DC Circuit decision, underscore that the UDCP regime has continued to function well in the absence of formal FCC rules," the programmer said.
Verizon also wants the FCC to reject TiVo's request to reinstate certain CableCARD rules, saying it should rely on existing market forces. Like NCTA, it takes issue with applying encoding rules only to cable, saying that the court's decision invalidated all legal bases for the rules as applied to all MVPDs. NCTA noted that cable ops have continued to support CableCARDs even after the Jan court decision and are incentivized to do so because of competition. The trade group argued that cable operators already have a duty under other rules to support separate security for retail devices, but if the FCC chooses to proceed with a rulemaking because of the court decision, any rules adopted should have a sunset. And those encoding rules shouldn't just apply cable. "Applying encoding rules to only cable operators would not protect consumers. Instead, the rules would steer protected programming (such as early-release theatrical content) to non-cable operators, and away from the very cable customers that TiVo seeks to serve," NCTA said.
Public Knowledge supports TiVo's petition, declaring that the DC Circuit ruling was narrow but incorrectly interpreted by the Commission in a way that "could substantially weaken" CableCARD support. PK acknowledges shortcomings with the CARD, but said it shouldn't be abandoned without a replacement system in place. TiVo also, of course, has CEA's support, with the manufacturer trade group suggesting that the FCC can reinstate the rules based on the existing record and comments to TiVo's petition. "If the Commission feels obligated to issue a formal Notice of Proposed Rulemaking, it should do so expeditiously so as to avoid any further uncertainty," CEA said.
If the Commission does release an NPRM or grant TiVo's request, ACA wants it to consider a blanket exemption of the integration ban (which requires separable security, such as CableCARDs, for set-tops) for small cable systems operated by small cable ops. ACA said the FCC could relieve small ops from the ban while maintaining the requirement that cable ops support their customers' use of 3rd-party devices, such as TiVo's or Samsung's Smart Media Player, which just got the OK from the FCC via an analog tuner waiver ( Cfax , 9/10).
Ed Note: This story originally appeared in CableFAX Daily.