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As the FCC Unlocks the Box, Privacy Remains a Top Priority

February 11, 2016 , , , ,

The Federal Communication Commission's proposal to “unlock the box” and enable people to access pay TV content on any device could save customers billions, by giving them easier access to cable and online video on smart, innovative devices.

While this proposal has garnered widespread support from consumers, commenters, technology companies, and many content creators, cable, and some other video distributors have opposed it. They raise a variety of arguments, including a concern that a competitive consumer device market would raise new viewer privacy concerns.

Of course, it has been somewhat odd to see cable companies set themselves up as champions of privacy in this context, even as they urge the FCC to limit the scope of the privacy rules for broadband (and sue to overturn them in court). Nevertheless, as advocates of cable customer privacy, Public Knowledge takes this issue seriously. We are confident that nothing about unlocking the box will result in weaker privacy protections for consumers.

There are a few baseline issues to get out of the way. First, when Congress enacted the cable privacy law, Congress intended to make consumers the masters of their own information, not cable operators. Under the law, not only may a customer consent to the cable operator providing information to another, the customer can actually require the cable company to provide the customer access to all her information. When a customer buys a third-party device, she has the right to decide what information it has access to. As this study from the Pew Center for Research Shows, there is a wide range of views among consumers as to their willingness to share information in exchange for tangible benefits. But for all consumers, the keywords are “control” and “choice.” Under the FCC’s proposal, no one company–whether it’s a cable company or a device maker–can make that choice for them. Instead, the FCC proposal give subscribers the control over their information the law requires.

Additionally, nothing about device competition changes the contours of network privacy rules. Public Knowledge supports specific privacy protections for broadband and cable networks because the network has unique access to some kinds of consumer information. Nothing about unlocking the box changes any of this.

Beyond these baseline issues, however, it does seem that the pay TV market is different than other markets, such as the broadband market, in some respects. Customers generally understand the difference between an Internet Service Provider such as Charter and an equipment maker such as Dell. But currently, most customers rent their set-top boxes directly from their providers, and those boxes are subject to special FCC rules. Even after the FCC proposal goes into effect, it is likely that many millions of customers will continue to rent cable devices. It is reasonable for consumers to have the same privacy expectations whether they rent devices from their cable companies or buy them at retail, and the FCC should protect those expectations.

Public Knowledge has been skeptical of FCC attempts to regulate consumer devices in the past–for example, we were plaintiffs in the “broadcast flag” case that overturned the FCC's attempt to require that all consumer electronics that received broadcast content (such as TVs) include an FCC-mandated copy-protection technology. Fundamentally, the FCC regulates networks, not consumer devices.    

However, ensuring that purchasers of competitive devices have adequate privacy protections does not require that the FCC exceed its jurisdiction as it did in the broadcast flag matter. For example, the FCC can require that pay TV operators themselves only make their content available via standards that require that compatible devices protect consumer privacy. We're not talking about giving cable veto power over what devices that consumers can use, but rather, ensuring that the open standards that cable operators themselves adequately ensure privacy. Under this approach, the only direct FCC requirements are imposed on pay TV operators, while the result still ensures that competitive devices protect consumer privacy.

Also, many privacy rules–the Federal Trade Commission's privacy framework, the Children's Online Privacy Protection Act, the Video Privacy Protection Act–already apply to non-cable services and devices. There are good arguments that these protections do not go far enough, but as an initial matter it's worth pointing out that competitive devices that access pay TV programming would operate under the same requirements as video game consoles, current streaming-only devices such as the Roku, and other home devices. Many customers are familiar with these devices.

This is not the only possible approach, of course. Nor is the FCC's proceeding to unlock the box the only or best venue to discuss broad issues of customer privacy. But concerns about viewer privacy are legitimate and the FCC should take them seriously. Fortunately, its proposal to introduce competition to a locked-up market will in fact promote privacy, as well as allowing consumers to save money by accessing pay TV content in better, more flexible ways.

Image credit: Flickr user Mr. TinDC


About John Bergmayer

John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.