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November 4, 2009

Chairman Julius Genachowski
Federal Communications Commission
445 12th St. SW
Washington, DC 20554

Re: MB Docket No. 08-82

Dear Chairman Genachowski:

The undersigned public interest groups write to you to urge the Media
Bureau to deny the Motion Picture Association of America’s petition
for “Selectable Output Control” (“SOC”). You have
pledged that the Commission will be committed to data-driven decision
making. Your dedication to the FCC’s regulatory process and rule of
law is important in insuring that the Commission is accountable to the
public, not just responsive to the whims of industry. Here, the big movie
studios have asked for a waiver of a rule that bans certain
unfriendly-to-consumer controls over consumer electronics. Our groups
have filled the record with reasons why such a waiver would be
detrimental to consumers. The MPAA has provided the Commission with
zero data to support its request. Despite a dearth of evidence
justifying this petition, the Media Bureau appears poised to grant the
waiver as a special favor to the MPAA, contrary to the public interest.

The standard for granting waivers to Commission rules is meant to be high
to maintain the integrity of the rule. The MPAA claims this waiver will
enable the industry to experiment with a “new business
model,” even though some studios have already abandoned release
windows. Such a major industry request would be addressed properly with
an FCC rulemaking proceeding, not a waiver. Instead, the Media Bureau is
signaling that it will waive rules for big industry at consumers’
expense, which opens the floodgates to policy by waiver. The Media
Bureau’s actions here will render your commitment to accountability
and the rule of law as mere rhetoric and signal to the public that this
FCC is beholden to big industry.

As petitioner, the MPAA bears the burden of proof and must demonstrate
that the waiver is warranted. Yet, over the past year, the MPAA has
failed to provide a reason as to why the limited interests of its six
member movie studios should be allowed to outweigh the interests of those
consumers that will be forced to replace over 20 million television sets
and countless other devices in order to view content that their current
equipment is capable of displaying. Furthermore, granting the waiver
effectively would allow MPAA member companies to control the types of
connections and features offered to all U.S. consumers, forcing consumer
electronics designers and manufacturers to agree to almost any
consumer-unfriendly conditions just to display SOC content. Lastly, the
MPAA has not presented a shred of relevant data in the record to support
its claim that the ability to turn off video outputs on common consumer
electronics could be used to effectively combat piracy. Instead, MPAA
member studio Paramount undercut its own argument by presenting data that
illustrates that infringing copies of movies are already widely available
on the Internet on the day of a film’s theatrical release –
months before the proposed home VoD release date. Granting this waiver
would do nothing to limit the availability of these infringing
copies.

The undersigned groups oppose the MPAA’s petition for waiver. To
grant a waiver request without evidence would erode the integrity of the
Commission’s rules and extend a blanket invitation for further
unsupported waiver applications. If the Commission bows to the capricious
desires of industry, it runs the risk of undermining its reputation as,
according to Chairman Genachowski, a data driven agency. Worse, it
creates uncertainty and acts as a deterrent to innovation, to the
detriment of consumers. For all of the above reasons, the Commission
should deny the petition.

Respectfully submitted,

Gigi Sohn
President and Cofounder
Public Knowledge

Sean McLaughlin
Executive Director
Access Humboldt

Mark Cooper
Research Director
Consumer Federation of America

Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation

Jennifer Mercurio
Vice President & General Counsel
Entertainment Consumers Association

Christopher Mitchell
Director, Telecommunications as Commons Initiative
Institute for Local Self-Reliance

Andrew Jay Schwartzman
President and CEO
Media Access Project

Tracy Rosenberg
Executive Director
Media Alliance

Beth McConnell
Executive Director
Media & Democracy Coalition

Helen De Michiel
Jack Walsh
Co-Directors
National Alliance for Media + Culture

Sascha Meinrath
Director, Open Technology Initiative
New America Foundation

Jonathan Lawson
Executive Director
Reclaim the Media

Amina Fazlullah
Legislative Counsel
U.S. PIRG

Cc:
Commissioner Copps
Commissioner McDowell
Commissioner Clyburn
Commissioner Baker