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November 10, 2009

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

RE: MPAA Petition for Expedited Special Relief: Waiver of 47
C.F.R. §76.1903
MB Docket No. 08-82

Dear Ms. Dortch:

Public Knowledge files the following comments to respond to recent
filings by Petitioner MPAA and to additionally clarify Public
Knowledge’s position regarding the above captioned proceeding.

The question before the Bureau is not whether some individuals would find
it more convenient to watch a given movie in their home via Video on
Demand (“VoD”) prior to the release of that same movie on DVD
days or weeks later. The Bureau must determine whether the Applicants
have met their burden to show that it is necessary to waive a rule
already found to serve the public interest in order to better serve the
public interest. In the case of the MPAA’s Selectable Output
Control (“SOC”) waiver, the answer remains “no.”

There is also no doubt that some providers of possible services would
find it convenient to control selected outputs, and might chose to
withhold services or content without a waiver. Controlling selected
outputs allows a service provider or content owner to extract additional
rents from consumers in a multitude of ways. Again, however, the standard
for a waiver is not that an Applicant would like to have a waiver, or
that the wavier would benefit the Applicant, or even that the Applicant
threatens to withhold the service or content unless the Bureau grants the
waiver. As the Commission has stated in the past “waiver of the
Commission’s rules is therefore appropriate only if special
circumstances warrant a deviation from the general rule, and such a
deviation will serve the public interest. Moreover, in demonstrating
whether a waiver is warranted, the burden of proof rests with the
petitioner.”^[1] While the waiver requested by the MPAA might serve
the MPAA, there is nothing more than speculation to suggest that it will
serve the public interest.

In fact, the current record suggests that the MPAA’s waiver will
harm the public interest. Within the past week, over 1,700 individuals
have filed comments in this docket. The overwhelming majority of these
comments urge the Commission to deny the MPAA’s request.
While the volume of comments in a particular docket can be an imprecise
measure of public interest, the Commission would be well served to
consider the public reaction to this waiver request. To the extent
members of the public have expressed an opinion, they do not find the
deal offered by the MPAA in their interest.

The MPAA also repeatedly suggests^[2] that SOC would allow it to introduce the types of
“new business models” contemplated when the Commission
originally implemented SOC rules.^[3] This is incorrect for several reasons. First, it is
the MPAA, not SOC, that is currently preventing the release of
MPAA-member studio films to the public via VoD prior to DVD release. As
Public Knowledge has documented in the past, a number of non-MPAA studios
already make films available to the public without SOC
protections.^[4]
Second, there is nothing “new” about what the MPAA is
proposing.

The MPAA’s proposal would use existing technology to bring existing
content to a place where consumers already view films. There simply is
nothing new about using VoD to deliver movies to consumers at home. While
it may be “new” for some MPAA members to grant consumers
access to films at home prior to DVD release, it is far from new in the
broader film industry.^[5]

The MPAA explicitly recognizes this fact in its most recent
letter.^[6] It states
that the wavier “would merely permit MPAA-member studios to make
some of this content available earlier.”^[7] Merely releasing content
“sometime prior to release on prerecorded media”^[8] can hardly be considered a
“new” business model.

The MPAA limits its claims to “MPAA-member studios” because
it must: a number of non-MPAA member studios feel free to distribute
their “high-value content” to consumers well before the DVD
release date.^[9]
Just as Viacom disingenuously announced that its CBS broadcast network
would be unable to broadcast in high definition without the broadcast
flag, the MPAA is claiming that SOC is required to make films available
via VoD the day before the DVD release date.^[10] As competitive pressures force more
studios to dismantle traditional release windows MPAA-member studios,
like Viacom before them, will recognize that additional
consumer-unfriendly digital locks do not provide additional protection
against unauthorized content reproduction.

In a final effort to gloss over the impact of its request and paint
it’s Application as “pro-innovation,” the MPAA tries to
go on the offensive by accusing Public Knowledge of holding back this
“new service.”^[11] MPAA’s choice of illustration, that
“under Public Knowledge’s approach, the Commission would have
taken decades to permit television stations to broadcast in color, since
millions of American homes already had purchased black-and-white sets
when color broadcasts were introduced in the 1950s,”^[12] is particularly
ill-chosen from the MPAA’s perspective.

As commenter Bill Paul, CEO of Neothings, Inc. points out, in the 1950s
the FCC was tasked with choosing between a number of competing color
television standards.^[13] The FCC initially favored a standard that would
have required all viewers to purchase a new television to receive signals
broadcast with the new color technology. Older televisions would
gradually go dark as black and white transmission gave way to the
CBS-proposed color standard. As a result, the public and the FCC
ultimately adopted the RCA-proposed color standard, which permitted
backward compatibility.

Congress attached such high value to ensuring that all televisions could
receive all broadcast signals that it passed Section 303(s), giving the
Commission explicit authority to regulate broadcast receivers so that no
one could “break” television signals in the same way the MPAA
proposes to break VoD – by requiring viewers to buy new equipment
to see all the content to which they are entitled. Indeed, Congress has
time and again acted to ensure that consumers can use the electronic
devices of their choice to record and to view all lawfully available
content.^[14]

As Congress itself found in these cases, it promotes innovation and consumer welfare to
prohibit “encoding or encryption technologies” that disable
consumer electronic devices. Indeed, as MPAA’s color television
example aptly demonstrates, the unique value placed by Congress, the
Commission, and the public on access to video content through their
existing equipment weighs heavily against the MPAA’s Application.
When combined with the overwhelming rejection of the proposed “new
service” by the public, and MPAA’s failure to provide any
evidence that the waiver will even address MPAA’s own concerns
about illegal copying, it becomes clear that the Bureau should reject the
MPAA’s waiver request as contrary to the public interest.

Sincerely,

/s/

Harold Feld
Michael Weinberg, Law Clerk
Public Knowledge

CC: Susan Aaron
Steven Broeckaert
William Freedman
Brad Gillen
Rosemary Harold
Jamila Bess Johnson
Rick Kaplan
William Lake
Mary Beth Murphy
Nancy Murphy
Brendan Murray
Alison Neplokh
Jeffery Neumann
Robert Ratcliffe
Jennifer Schneider
Austin Schlick
Sherrese Smith
Marilyn Sonn
Phoebe Yang

^[1] Centennial
Cellular Tristate Operating Partnership, 21 FCC Rec. 9170, 9172
(2006).

^[2] See MPAA
Petition for Expedited Special Relief: Waiver of 47 C.F.R.
§76.1903 (“MPAA Petition”). See also Letter
from Antoinette Cook Bush, Counsel to MPAA, to Marlene H. Dortch,
Secretary, Federal Communication Commission, MB Docket No. 08-82 (dated
Nov. 4, 2009) (“MPAA November 4 Letter”).

^[3] See
Implementation of Section 304 of the Telecommunications Act of 1996:
Commercial Availability of Navigation Devices; Compatibility between
Cable Systems and Consumer Electronics Equipment, Second Report and
Order and Second Further Notice of Proposed Rulemaking, 18 FCC Rcd 20885,
¶ 61 (2003).

^[4] See
Letter from Jef Pearlman, Staff Attorney, Public Knowledge, to Marlene H.
Dortch, Secretary, Federal Communication Commission, MB Docket No. 08-82
(dated Nov. 2, 2009) (“PK November 2 Letter”).

^[5] Id.

^[6] MPAA November 4
Letter.

^[7] Id. at
5 (emphasis in original).

^[8] MPAA Petition at
2.

^[9] PK November 2
Letter.

^[10] See
Comments of Viacom, Docket 02-230, available at
http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6513394608.

^[11] MPAA
November 4 Letter at 2.

^[12] Id.

^[13] See
Letter from Bill Paul, CEO, Neothings, Inc. to Marlene H. Dortch,
Secretary, Federal Communication Commission, MB Docket No. 08-82 (dated
Nov. 5, 2009).

^[14] See
47 U.S.C. §544a(a) (Congressional findings that it is contrary to
the public interest for “cable scrambling, encoding or encryption
technologies” to disable “premium features and
functions” in television sets and VCRs and that doing so will make
consumers “less likely to purchase, and electronics equipment
manufacturers less likely to develop, manufacture, or offer for sale
television receivers or VCRs with new and innovative features and
functions”). See also The Digital Transition and Public
Safety Act of 2005, §3005 (creating digital-to-analog converter box
program).