PK Ex Parte Notice of Presentation to Phil Bellaria on the Topic Of Selectable Output Control

This document is also available in PDF format.

October 28, 2009

Marlene H. Dortch
Secretary
Federal Communications Commission
445 12^th St. SW
Washington, DC 20554

RE: Notice of Ex Parte presentation in CS Docket No. 97-80, MB Docket No. 08-82, GN Docket No. 09-51, MB Docket No. 09-168

Dear Ms. Dortch:

On October 27, 2009, I met with Phil Bellaria, with regard to the above captioned matters.

At the meeting, I provided copies of the attached materials and discussed the following:

When considering online video, it is important to distinguish between traditional video programming delivered through the internet (e.g., television shows, movies) and video used for other purposes (e.g., education, work related materials, political speech). Regulation of “Internet video” based on assumptions that “Internet video” is merely a platform for delivering traditional video programming will have serious negative impacts on the other uses of online video streaming or video delivery. Copyright filters, capacity caps, and prioritization of streaming video based on protocol or third party payment could all impede the development of online video as an important tool for education, telecommuting, telehealth, civic engagement, and user developed content. It may also impede the development of competition to traditional video delivery.
The ability of individuals and others to create video, distribute it online, or watch internet video seamlessly on their television sets, is a significant incentive to sustainable adoption.
The Commission’s existing rules under Section 624a and Section 629 have not facilitated innovation and adoption of new technologies that seamlessly integrate video with broadband or facilitate user-created content or competitive new services in the manner envisioned by Congress and that the National Broadband Plan should encourage. This is not so much a matter of bad faith on the part of any industry sector so much as the problem that the rules themselves are cumbersome and outdated. Section 624a explicitly requires to review its rules periodically to ensure that they continue to protect the ability of consumers to attach third-party devices. The Commission should undertake such a review – as well as a review of rules implementing Section 629 – as part of the National Broadband Plan.
The existing rules are further undermined by the practice of the Media Bureau encouraging waiver applications in place of a comprehensive rulemaking. There are numerous pending waivers before the Bureau, many of which impact the entire industry. The constant grant of waivers creates uncertainty in the industry, discourages investment, and makes long-term business planning impossible because the application of the rules may change at any time in ways that impact the entire industry.
The Cablevision waiver application, MB Docket No. 09-168, is a classic example of the problem of industry rulemaking by waiver. The entire cable industry will undergo a “cable digital conversion.” This will have many benefits for consumers and should be facilitated as part of the National Broadband Plan. However, the Commission must manage this process to mitigate harm to consumers as set forth in Public Knowledge’s comments in that proceeding.
The MPAA application is another example of the problem of inviting waivers for special interests. The MPAA has produced no evidence explaining why it requires this waiver as a precondition to shorten its release window. Indeed, recent deals between Comcast and Time Warner show that individual companies can and will shorten the release window under the existing rules as a result of negotiations. The possibility that the Bureau will grant this (and other) waivers, however, creates a “moral hazard” where companies decline to negotiate because it would undermine their position before the agency and because the because of the possibility that the Bureau will grant the request.
For all these reasons, the Bureau should cease the practice of rulemaking by waiver and instead undertake a comprehensive rulemaking under Section 624a, 629, and to ensure that the cable digital conversion promotes the National Broadband Plan while protecting consumers.