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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  cumbersome and outdated.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.

In accordance with the Commission’s rules, a copy of this notice is
being filed with your office today.

Sincerely,

/s/

Harold Feld
Legal Director
Public Knowledge

cc: Phil Bellaria