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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the Matter of

Evolution Broadband, LLC’s Request for Waiver Of
Section 76.1204(a)(1) of the Commission’s Rules
CSR-7902-Z

Implementation of Section 304 of the Telecommunications Act
of 1996 Commercial Availability of Navigation Devices
CS Docket No. 97-80

PETITION FOR RECONSIDERATION OF PUBLIC KNOWLEDGE, FREE PRESS,
MEDIA ACCESS PROJECT, NEW AMERICA FOUNDATION, OPEN TECHNOLOGY INSTITUTE,
AND U.S. PIRG

Harold Feld
Adam Thomas
Jef Pearlman
Brian Rowe, Law Clerk
Public Knowledge
1875 Connecticut Ave, NW
Suite 650
Washington, DC 20009
(202) 518-0020

Chris Riley
Adam Lynn
Free Press
501 Third Street NW
Suite 875
Washington, DC 20001
(202) 265-1490

June 29, 2009

Public Knowledge, Free Press, Media Access Project, New America
Foundation, Open Technology Institute, and U.S. PIRG (collectively
“PK, et al.”) file this
Petition for Reconsideration of the Memorandum
Opinion and Order granting a waiver of 47 C.F.R. § 76.1204(a)(1) to
Evolution Broadband, LLC (“Evolution”) (the
“Evolution Order”) for two set-top
box models on the grounds that these boxes met the “low-cost
limited capability standard” supposedly set forth in its previous
decisions.^[1]

SUMMARY

PK, et al. set forth the following grounds for
reconsideration. First, four major manufacturers filed applications for
expedited “Evolution waivers” even
before the conclusion of the period of time for to file
Petitions for Reconsideration. This rush of
applications presents new facts that question the Commission’s
prediction that the grant of the waiver will not undermine the
deployment of CableCARD. The broad scope of current and potential future
“me-too” waivers creates a real possibility of substantial
consumer harm through limited consumer choice and, eventually, increased
price for set-top boxes. Second, the Evolution
Order misapplied Commission precedent, erroneously
concluding that past orders had adopted a “standard” for
“low-cost limited capability” set-top boxes when these
orders had merely stated that the Commission would fully consider the
matter at the proper time. As a result, the Commission limited its
consideration to whether the boxes described by Evolution met the
“standard” that it had not, in fact, adopted, rather than
conducting the full inquiry promised in 2005 as to whether grant of such
a waiver under any circumstances would serve the public interest.

Under the appropriate analysis, it is clear that the Commission’s
unsupported interpretation of the 2005 Order
to permit waiver of 629 for such low-cost boxes would contravene the
express command of Congress when it adopted Section 624a (47 U.S.C.
§544a) in the 1992 Cable
Act.^[2] Section 624a explicitly prohibited the type of box
approved by the Commission here: a box that permits analog
viewing.^[3] The
grant of the waiver in the Evolution Order has
transformed Section 629 from its purpose as an expansion of Section 624a
into a way to circumvent Section 624a, repeating exactly the same
consumer lock-in Congress found contrary to the public interest over 15
years ago.

Finally, in concluding that the grant of Evolution
Order waivers would not undermine the development of
CableCARD or other “common reliance” technologies, the
Commission failed to address the possibility that manufacturers or cable
operators might subsequently expand the capabilities of the devices or
replicate advanced services – such as DVR – through other
means. For example, cable operators might offer to subscribers the
ability to insert new chips with enhanced functionality at the time of
installation. Such upgrades would allow the waiver granted in the
Evolution Order, and similar waivers, to
permit devices with additional capabilities than those permitted in the
Evolution Order without inclusion of CableCARD
or other similar technologies. This possibility opens the door to
wholesale disregard for section 629, resulting in fewer choices for
consumers, less competition, and clear circumvention of Congressional
intent. Furthermore, the ease of technical upgrades to these boxes makes
enforcement of the ostensibly narrow terms of the waiver practically
impossible. If the Commission does not rescind the waiver, it must
impose sufficient protections to ensure that neither cable operators not
manufactures can enhance the capabilities of
Evolution-type boxes.

ARGUMENT

Petitioners represent cable subscribers and organizations dedicated to
encouraging robust competition for cable services. Petitioners interests
are therefore adversely affected by the Commission’s decision to
grant Evolution a waiver.^[4] As set forth below, Petitioners rely on facts that
have occurred subsequent to the Commission’s grant of the waiver
and seek correction of erroneous conclusions of fact and
law.^[5]
Specifically, (a) the unusually swift and heavy response from STB
manufacturers indicates that the Commission erred when it predicted that
grant of the waiver would not undermine CableCARD support; (b) the
Commission erroneously concluded that it had previously resolved the
question of whether grant of any “low-cost, low capability”
waivers would serve the public interest and, had the Commission
conducted such an analysis, it would have concluded that grant of such a
general waiver under any circumstances does not serve the public
interest; and (c) the Commission failed to take proper precautions to
prevent expansion of capabilities by boxes subject to an
Evolution waiver.

I. THE FLOOD OF WAIVER APPLICATIONS RAISES CONSIDERABLE
DOUBT THAT THE WAIVER WILL NOT UNDERMINE SECTION 629.

The Commission based its grant of the waiver on its conclusion it would
not undermine the “common reliance” the Commission sought to
foster with the integration ban. Reasoning that the waiver applied
“only to the most basic of devices,” the Commission
concluded that cable operators and manufacturers would prefer to deploy
high-end boxes.^[6]
In short, the Commission considered the covered boxes a niche market
product unlikely to detract from developed of CableCARD enabled devices.

The flood of applications in the short time since the Commission granted
the waiver strongly suggests the Commission erred in brushing aside
CEA’s objections. The Applicants filing in the last two weeks
include the major manufacturers Motorola, Cisco, and
Thomson.^[7] This
does not suggest a niche market unlikely to undermine development of
CableCARD and other “common reliance” technology. To the
contrary, this strongly suggests that manufacturers perceive cable
operators as extremely interested in purchasing such boxes for
widespread deployment. This enthusiastic reaction mere days after the
Commission granted the waiver shows the Commission significantly
underestimated the impact of the Evolution Waiver
Order on the industry, and its impact on the deployment of
CableCARD and the development of other “common reliance”
technologies.

Furthermore, the Commission erred in failing to recognize that low-cost
STB devices are not a small segment of the market. News articles
reported that Comcast was seeking a low-cost STB well over a year
ago.^[8] By May of
2008, Comcast had confirmed they were looking to migrate 20 percent of
markets by the end of 2008.^[9] Given the size of Comcast’s footprint, it was
expected that Comcast would be ordering “about 25 million
[STB]s.”^[10] A month later the cable operator had selected
three vendors – Motorola, Pace Micro, and Thomson – and
announced their plans to purchase 6 million STBs in 2008.^[11] Comcast, whose network
passes more than 50 million homes, has since announced plans to have
half of their footprint migrated to STBs by the end of
2009.^[12]
Comcast has deployed the STBs without
security, transmitting content “in the clear.”^[13] Thus, an entire market
has already developed for STBs that fully conform to existing Commission
rules. The potential for consumer harm by permitting STBs that do not
comply with the integration ban in such a large market – one ably
served by conforming STBs – was insufficiently considered in the
Evolution Order.

The Evolution Order appears to justify the
waiver in large part because it allows Evolution to provide the industry
with a low-cost ($45-$55) conversion device. As examination of the
2005 Order reveals, waivers are no longer
necessary to provide low cost devices to consumers. The
Evolution Order notes that the industry
emphasized the importance of in arguing for the 2005
Order.^[14] The NCTA told the Commission in 2004 that a STB
of “$35-$50” was needed.^[15] Whether true in 2004 or not, this need is no
longer characteristic of the market. Comcast has stated the STBs already
used in their system cost “roughly $30.”^[16] In copying the
now-defunct rationale used in the 2005 Order,
the Commission has provided no valid justification for granting this
waiver.

Accordingly, the Commission should therefore reverse the grant of the
waiver or, in the alternative, significantly shorten its term so that
the Commission may adequately monitor the market response.

II. THE COMMISSION MISAPPLIED ITS PAST PRECEDENT AND FAILED
TO CONDUCT AN APPROPRIATE PUBLIC INTEREST DETERMINATION.

The Commission misapplied its previous precedent in declaring that the
2005 Waiver Order created a
“standard” under which an Applicant would be entitled to
waiver on the basis of a particular showing. Rather, the Commission
stated that it would “consider whether low-cost,
limited capability boxes should be subject to the integration
ban.”^[17]
Although the Commission indicated that it was “inclined to
believe” that granting such waivers would serve the public
interest and would not undermine the goals of Section 629. But the
Commission reached no actual conclusion on the matter. Rather, the
Commission decided to withhold judgment on this tentative conclusion
until presented with an actual device that might qualify – should
the Commission decide that grant of such waivers would serve the public
interest at all.

A. The Commission Misapplied Its 2005 Order And
Failed To Conduct An Appropriate Public Interest Determination.

In the Evolution Order, the Commission treated
this tentative language as a foregone conclusion. Rather than making the
promised determination on whether or not it would serve the public
interest to grant any waivers of the integration
ban, including waivers for low-cost low capability set-top boxes, the
Commission treated the question before it as whether the Evolution STBs
met the “standard” announced in 2005. But the
2005 Order did not announce any standard
because the Commission reserved the ultimate question on whether such
waivers would serve the public interest at all until confronted with an
appropriate low-cost low capability device.

Nor did the Commission’s 2007 Order
denying Comcast a waiver resolve the underlying question of whether a
general grant of a waiver for low-cost low capability devices served the
public interest. The Commission denied Comcast’s waiver request
because it found the box in question would not be eligible for a waiver
of the type described in the 2005 Order even
if the Commission were disposed to grant such a waiver.^[18] Thus, although the
Comcast Order referred to the
“standards” set forth in the 2005
Order, it could not have reached the broader question left
undecided in 2005 because it had no occasion to do so.

Only here, where an Applicant has met the initial threshold of
submitting an Application for a low-cost, low priority box, could the
Commission undertake the thorough analysis of determining whether its
initial “inclination” that permitting cable operators to
offer low-cost, limited capability devices served the public interest
and did not endanger the goals of Section 629. The Commission therefore
erred when it limited its inquiry to the determination that the
Evolution STBs meet the criteria for a low-cost and low capability. The
Commission must continue to the next step of the analysis, which it
deferred in 2005. It must now determine “whether low-cost, limited
capability boxes should be subject to the integration ban or whether
cable operators should be permitted to offer such low-cost limited
capability boxes on an integrated basis.”^[19] As discussed in the next section,
Congress has previously spoken to this very question, and found that
allowing low-cost boxes that permit analog-only viewing do not serve the
public interest, and undermine the development of an innovative and
competitive market for cable set-top boxes.

B. Grant of the Waiver Replicates The Type of Boxes
Prohibited By Congress In the 1992 Cable Act.

In 1992, as part of the Cable Television Consumer Protection
and Competition Act (the 1992 Cable
Act) Congress created Section 624a of the
Communications Act (codified at 47 U.S.C.
§544a). Congress made explicit findings that allowing cable
operators to use security features or other mechanisms to disable or
inhibit consumer electronic devices from attaching to the cable network
threatened to reduce innovation and competition.^[20] Congress therefore required the
Commission to conduct a rulemaking to require a common interface that
would permit development of televisions and other devices capable of
working on any cable system, and to periodically review these
regulations to ensure that changes in technology did not eliminate this
compatibility.^[21] The wisdom of this Congressional mandate became
clear almost as soon as the Commission completed the required
rulemaking. Consumers quickly found themselves with a choice of
“cable ready” television sets and other electronic devices,
eliminating the need to rent set-top boxes and remote controls from
cable operators at non-competitive prices. Indeed, Section 624a proved
so successful that in 1996 Congress expanded the concept to include new
two-way services and to explicitly cover all MVPDs.^[22]

1. The Evolution Order Effectively Eliminates
Section 624a.

By creating an expedited process to grant
“Evolution waivers” to other STB
manufacturers, the Commission has had the unintended effect of
eliminating application of Section 624a.^[23] The Commission has now determined that
any STB that offers only those capabilities
necessary to view analog only programming may receive a waiver,
regardless of the impact on Section 624a. For the first time since the
Commission implemented Section 624a in 1993, a cable operator may
legally require that a consumer subscribing to a tier of service
providing only one-way SD service lease a set-top box and remote from
the cable operator as a requirement of service.

Nothing in the language or legislative history suggests that Congress
intended Section 629 to supersede Section 624a. To the contrary,
Congress clearly intended Section 629 to expand on the success of
Section 624a. But by creating a waiver of Section 629 for the express
purpose of permitting cable operators to offer “one-way, non-HD,
non-DVR devices” under a proprietary arrangement, the Commission
has created a situation in which a waiver of Section 629 obligations
eliminates any obligation to comply with Section 624a as well.

2. The Congressional Findings in Section 624a and
Subsequent Market History Demonstrates that The Commission erred In
Concluding That Grant of the Evolution Waiver Serves the Public
Interest.

In the 2005 Order, the Commission voiced
concern that consumers have access to low-cost boxes to facilitate the
DTV transition by ensuring subscribers could continue to use analog
television sets “before and after the
transition.”^[24] Absent any evidence or substantial experience at
the time with CableCARD, the Commission cautiously stated that it was
“inclined to believe” that waivers for low-cost boxes
“will not endanger the development of the competitive marketplace
envisioned in Section 629.”^[25] On review of the Evolution Application, however,
the Commission treated this tentative conclusion as a finding of fact
already subject to evaluation on the record.^[26]

This tentative conclusion in 2005, which the Commission should have
analyzed thoroughly in the instant case, runs contrary to the
Congressional findings in Section 624a and the history of 624a’s
implementation. Congress explicitly found that allowing cable operators
to limit the availability of cable boxes did, in fact, frustrate the
development of precisely the sort of competitive market
“envisioned in Section 629.”^[27] Furthermore, the adoption of a standard
interface for set-top boxes and other consumer devices resulted in the
widespread availability of cheap “cable ready” televisions
and other devices as a result of the economies of scale. The
Commission’s concern that a refusal to grant a waiver would result
in an increase in prices runs directly contrary to Congress’
previous findings and the Commission’s own experience.

Finally, the Commission failed to consider here that the passage of time
and changes in the law significantly reduced the need for low-cost
limited capability boxes as a means of facilitating the digital
transition. When the Commission issued the 2005 Waiver
Order in March of 2005, the digital transition remained in
limbo. To complete the transition and end analog transmission required
that a significant percentage of the public be capable of receiving
digital television signals, including as subscribers to cable or other
MVPDs.^[28] This
placed an extremely high value on encouraging consumers to migrate to
MVPD to free up spectrum through the digital transition and the end of
analog broadcasting.^[29] Subsequent to the 2005
Order, Congress passed the Digital Television
Transition And Public Safety Act of 2005
(“DTV Transition Act”) as part of
the Deficit Reduction Act of 2005.^[30] This set a hard date for the end of analog
broadcasting, significantly reducing the need to provide a low-cost
device for viewing digitally broadcast signals on analog televisions.

The positive benefits of the waiver that the Commission tentatively
identified in the 2005 Order are further
reduced by other changes between March 2005 when the Commission released
the 2005 Order and today. For example, the
coupon program created by Congress in the DTV Transition
Act and fully funded in the most recent federal budget has
provided an even lower cost solution for viewers wishing to see digital
television signals with their analog receivers. Full power analog
broadcasting has ended, and consumers still using analog receivers have
already chosen among possible alternatives and services to maintain the
level of service they desire – from exclusive reliance on free
over-the-air signals to subscription to existing MVPDs without the need for a low-cost,
limited capability set-top box offering.

In other words, there is no evidence that any of the benefits the
Commission tentatively identified in March 2005 remain compelling in
June 2009. This is why the Commission declined to make a determination
until presented with an Application for a genuinely low-cost limited
capability set-top box. Had the Commission conducted the appropriate
analysis instead of erroneously applying its tentative conclusions from
2005 as immutable findings, the Commission would have concluded that the
possible benefits of granting such a waiver had dwindled considerably
past the point where hey would outweigh the concerns Congress had
successfully addressed more than 15 years ago in Section 624a.

III. THE POSSIBILITY OF DEVICE UPGRADES UNDERMINES THE
ORDER AND IS NOT SUFFICIENTLY LIMITED.

A. Waivers Require Devices to be Limited in Capability.

Even under the Commission’s erroneous interpretation of the
2005 Order, waivers of the integration ban are
premised on the “low-cost, limited capability” nature of the
devices at issue.^[31] The Evolution Order
acknowledges this, stating clearly that “[a]ny device with
advanced functionality (including the ability to engage in two-way
communication over the cable system) is ineligible for
waiver….”^[32] To allow more powerful devices – or devices
which could later be given additional flexibility through cable operator
hardware or software upgrades – to be sold without supporting
CableCARD technology would undermine Congressional intent to create a
competitive marketplace in devices, ultimately limiting consumer choice
and raising consumer prices.

The ability to upgrade devices therefore poses a substantial risk of
harm to consumers. If devices are capable of substantial upgrades by
cable operators prior to or after deployment, then substantial potential
exists for those cable operators to sell powerful devices not subject to
the integration ban, which would undermine the Evolution
Order and other past Commission actions as well as the
clear intent of Congress. It would essentially eliminate Section 629 if
manufactures can receive waivers for “limited capability”
boxes that a cable operator can transform into higher capacity boxes
either before or after deployment to the subscriber’s home.

The Media Bureau already has before it applications with unspecified
downloadable capabilities.^[33] Nor has the Commission taken steps to prevent
cable operators from offering to upgrade capacity by adding new hardware
or software to the box. Cable operator could perform such installations
as a routine part of deploying boxes with waivers, leaving the new
capabilities inactive until some future date.

Furthermore, substantial incentive exists for such behavior as well
– if cable operators can offer “low cost” devices to
their consumers that can handle a broad range of cable features, they
can discourage the growth of non-integrated devices and other competing
means of using cable service, ultimately limiting consumer choice and
allowing them to raise prices and increase lock-in. The
Commission’s failure to even address this potential for harm is
unsupportable and should be resolved through a reconsideration of the
waiver and an additional process of information and analysis concerning
upgradeability.

B. The Evolution Order Did Not Demonstrate
Impossibility of Upgrades.

The conclusions of the Evolution Order are
undercut by its failure to consider device upgrades. The scope of the
waiver and the insufficiency of Commission review create a substantial
possibility of device upgrades that undermine the intent of the
Commission and Congress. The Evolution Order
conferred a blanket waiver upon an entire class of devices, rather than
on a single cable operator’s implementation of the device in a
cable system. Because of the scope of such a waiver, the Commission
should have placed a heavy burden of proof on Evolution to demonstrate
not only that the device is incapable of advanced functionality, but
also that cable operators cannot readily upgrade the device prior to
deployment or after deployment through downloadable upgrades. Instead, a
minimal presentation of technical capabilities of the device was held to
be sufficient, and the Commission’s subsequent waiver was applied
in advance to all cable operators who wish to deploy the device, without
any opportunity for Commission supervision of deployment in practice.

The Commission takes such precautions elsewhere. For example, the
Commission requires any equipment manufacturer seeking certification for
unlicensed devices under Part 15 to take steps to ensure that users
cannot subsequently modify the device to exceed permissible power and
frequency limits.^[34] In addition, the Commission explicitly prohibits
third parties from selling amplifiers or other means of exceeding the
power limits for which the device received certification.^[35]

In the Evolution Order, a single sentence
sufficed to establish that the devices were low-cost: “We have
reviewed the specifications of the Subject Boxes, and we conclude that
they do not include two-way functionality or any other capabilities that
would preclude waiver under the low-cost, limited-capability
standard.”^[36] The Commission did nothing to prevent future
upgrades that would render the certification of “limited
capability” meaningless.

C. Device Upgrades Would Undermine the Commission’s
Waiver and Congressional Intent.

The Commission should reconsider the Evolution
Order because it failed to address explicitly and cabin
the possibility of upgrades to the Evolution devices. As an initial
matter, the Commission should consider whether it is possible to
sufficiently limit the possibility of hardware and software upgrades to
permit deployment of the devices. The Commission has no ability to
monitor devices in the field to ensure that they do not come either with
open slots for installation of new hardware or with the ability to
download new software which would expand the capacity of the device. Nor
can the Commission determine to what extent even a modest upgrade to
“limited capability” devices would frustrate the development
of the CableCARD market or other forms of common reliance technology.
Allowing widespread deployment of potentially upgradable boxes may
simply constitute too great a risk to the developing advanced set-top
box market.

Alternatively, the Commission could require manufacturers seeking
limited functionality waivers to demonstrate that the device is
incapable of being upgraded. The Commission should similarly prohibit
MVPDs from upgrading “limited capability” STBs or seeking to
circumvent the functional limitations on the devices through other
means. Only through direct restrictions on upgrades can the Commission
prevent circumvention of the integration ban and protect the emerging
market in Section 629 devices.

CONCLUSION

WHEREFORE, for the reasons given above, the Commission should grant this
Petition for Reconsideration.

Respectfully submitted,

________/s/__________

Harold Feld
Adam Thomas
Jef Pearlman
Brian Rowe, Law Clerk
Public Knowledge
1875 Connecticut Ave, NW
Suite 650
Washington, DC 20009
(202) 518-0020

Chris Riley
Adam Lynn
Free Press
501 Third Street NW
Suite 875
Washington, DC 20001
(202) 265-1490

June 29, 2009

^[1]
See Evolution Broadband, LLC’s Request for Waiver of
Section 76.1204(a)(1) of the Commission’s Rules; Implementation
of Section 304 of the Telecommunications Act of 1996; Commercial
Availability of Navigation Devices, CS Docket 97-80,
Memorandum Opinion and Order ¶ 11, FCC 09-46 (rel. June 1, 2009)
(“Evolution Order”) (citing
Implementation of Section 304 of the Telecommunications Act
of 1996: Commercial availability of Navigation Devices,
20 F.C.C.R. 6794, 6814-15 (2005) (“2005
Order”)).

^[2]
Cable Television Consumer Protection and Competition
Act, Pub. L. 102-385 (1992) (“1992
Cable Act”).

^[3]
Evolution Order ¶ 16.

^[4]
See 47 C.F.R. §1.106(b)(1).

^[5]
See generally 47 C.F.R. §§
1.106(b)-(d).

^[6]
Evolution Order at ¶ 14.

^[7] In
the Matter of Application of Motorola, Inc.’s Request for Waiver
of 47 C.F.R. § 76.1204(a)(1), MB Docket No.
CSR-8175-Z (released June 16, 2009); In the Matter of
Application of Cisco Systems, Inc.’s Request for Waiver of 47
C.F.R. § 76.1204(a)(1), MB Docket No. CSR-8176-Z
(released June 16, 2009); In the Matter of Application of
Thomson, Inc.’s Request for Waiver of 47 C.F.R. §
76.1204(a)(1), MB Docket No. CSR-8178-Z (released June
18, 2009).

^[8] Jeff
Baumgartner, “Comcast Pursuing $35 Digital Dongle,”
Cable Digital News, Feb. 22, 2008.

^[9] Jeff
Baumgartner, “Comcast Confirms Digital Dongle Project,”
Cable Digital News, May 1, 2008.

^[10]
Id. Comcast has since stated it will be
ordering around 30 million. See Thomson
Financial, Transcript of Q1 2009 Comcast Corporation Earnings
Conference Call, April 30, 2009, p. 5.

^[11] Todd
Spangler, “Comcast Picks DTA Partners,”
Multichannel News, June 26, 2008.

^[12] Todd
Spangler, “Comcast: 50% ‘All-Digital’ in 2009,”
Multichannel News, March 5, 2009;
See Comcast First Quarter 2009 Trending
Schedule, p. 1.

^[13] Jeff
Baumgartner, “Comcast’s DTAs: Security Optional,”
Light Reading, Sept. 3, 2008.

^[14]
Evolution Order ¶ 12 n.34.

^[15]
Id.

^[16] Thomson
Financial, Transcript of Q1 2009 Comcast Corporation Earnings
Conference Call, April 30, 2009, p. 6.

^[17]
2005 Order at 6813 (emphasis added).

^[18]
Comcast Corp. Request for Waiver of Section 76.1204(a)(1)
of the Commission’s Rules, 22 F.C.C.R. 17113,
17123-27 (2007).

^[19]
2005 Order at 6813

^[20]
See Section 624a(a).

^[21] Section
624a(c)-(d).

^[22]
See Section 629(a).

^[23] The Media
Bureau’s refusal to consider comments that might address this
issue make it impossible, absent reconsideration here, to address the
relationship between the proposed waiver and Section 624a.
See, e.g., Public Notice, Media Bureau Seeks
Public Comment on Cisco’s Low-Cost Limited Capability Set-Top Box
Certification, MB Docket No. CSR-8176-Z (released June 16, 2009) at n.6
(the Bureau “does not seek comment on the policy issues resolved
in the Evolution Order”).

^[24]
2005 Order at 6813.

^[25]
Id.

^[26]
Evolution Order at ¶ 12.

^[27]
See Section 624a (a)(2) (ability of cable
operators to use encryption and other means to disable or inhibit
devices will make “consumers less likely to purchase, and
electronics manufacturers less likely to develop, manufacture or offer
for sale” competing devices).

^[28]
See 47 U.S.C. §309(j)(14).

^[29]
2005 Order at 6813.

^[30]
See Deficit Reduction Act of
2005, Title III, §§ 3001-03.

^[31]
Evolution Order ¶¶ 11-12.

^[32]
Id. ¶ 13.

^[33]
See, e.g., Application of Motorola.

^[34]
See 47 C.F.R. §15.15(b).

^[35]
See 47 C.F.R. §15.204.

^[36]
Id. ¶ 13. PK has understood this to mean
that the device as certified is not capable of supporting upgrades.
See Opposition of Public Knowledge to
Application of Motorola, MB Docket No. CSR-8175-Z (filed June 26,
2009). Even under this reading, the Commission’s Order does not
address the issue of upgrades by cable operators.