FCC’s Video Device Rulemaking Is Excellent News For Consumers – But We’re Not Home Just YetFebruary 23, 2016
It’s no small secret that America loves a saga. And in the battle for real consumer video choice, we’re just getting started.
Last week, the Federal Communications Commission (FCC) took a huge step towards loosening cable’s chokehold on consumers in the name of more choices and more innovation. It voted 3-2 in favor of a Notice of Proposed Rulemaking (an “NPRM,” to those in The Biz) for new digital cable box standards that would allow customers to access their programming subscriptions through devices other than those they currently lease directly from their cable company.
We were thrilled to see hundreds of news reports lauding the FCC’s #UnlockTheBox vote as a win for us all. One short year after the FCC’s enormous decision on net neutrality, they had once again taken a stand against Big Cable!
But. It must be emphasized: we are by no means finished in the battle for an open video device market. In fact, the FCC’s vote was just one milestone in the ongoing efforts to open up the so-called “set-top box” marketplace so that more third-party device manufacturers can get in the game. (Think the next TiVo, Apple TV, Garage Start-up Inc., etc.)
I grew concerned when I saw headlines declaring that the FCC had just voted a “rule” to unlock the box, once and for all! The time has not yet come for cigars and champagne. There is quite a fight still before us to get the right policies for consumers and innovators over the finish line.
Some process fundamentals really quickly: when the FCC is thinking about crafting a new regulation, it puts forth a “proposed rulemaking” – an NPRM. This is a document explaining in detail the policies the FCC tentatively believes are the right ones, while still asking enough questions about other paths forward, giving stakeholders the opportunity to say “we think you’ve got this wrong; here is something else you might consider.” After the comment and reply comment periods, the Commission pulls it all together, and based on that aggregated information, comes up with a final rule – the official policy on which they will vote.
So in any proceeding, there is always the necessary effort while the NPRM is still being drafted to make sure the right questions are asked within the item. Once it’s adopted, stakeholders pivot to making sure the right answers are provided. These prolonged, substantive efforts – comprising part legal argument and part political acumen – are how the FCC comes to an appropriate rule when all is said and done. It’s an important but long haul.
In that case – now that the NPRM is out, what comes next? A few things. Procedurally, there will be the “comment period” and a “reply comment period” – an opportunity for anyone who’s interested – including you! – to weigh in, hashing out their concerns on the record, and responding to other stakeholders. And there are some legitimate questions, which the FCC has made sure to raise so they may be properly addressed. Questions about the technical standards for a competitive digital interface, about preserving existing copyright and privacy protections, and potential alternatives to the central proposal the FCC has put forward here. So at its core, the proceeding is the venue for a legitimate, in-depth conversation as to an appropriate, streamlined solution for cable subscribers in the digital age.
To that end, it’s worth pointing out that the NPRM vote was a victory, especially for those of us who have been clamoring for more innovation and consumer choice in a marketplace largely dominated by a few big incumbent cable companies. For months (or years, depending on who you ask), the Big Cable companies comfortable in their incumbency have been sparing no expense to dissuade the FCC from moving forward. They’ve been hammering Congress and the press with all manner of bogus arguments as to why more choice and competition would somehow be bad for consumers, trying to head the FCC off at the pass.
And that’s precisely why we need remain vigilant. Comment periods aside, the success of this proceeding will not depend solely on the polite legalese residing on the FCC’s comment system. Politically, the battle will now intensify to a fever pitch. Although it is also a signal to the cable companies that the Commission indeed intends to move forward with this pro-consumer, pro-competition agenda, an NPRM adopted does not necessarily mean an Order will follow. It will require consistent pressure from the good guys to get a successful rule. Opponents of video device competition will double down now, throwing up whatever specious arguments and scare tactics they can conjure to make a final rule politically unpalatable.
And of course they will! They’re raking in those set-top box rental fees to the tune of $20 billion a year (that’s on boxes alone). And they acknowledge that this particular FCC has a laudable appetite for addressing the anti-consumer, anti-competitive practices cable companies have been padding their pockets with for decades. Big Cable’s objective was clear: to push the FCC off from moving on a proceeding as long as possible, until a new, less aggressive administration took the helm. (And their self-serving hypocrisy is apparent: it’s worth pointing out that until recently, the cable companies were pushing for more choice in the video device market, too.)
Happily, the Commission has thus far identified Big Cable’s tactics as the delay strategies they are. This is due in part to the stalwart coalition of public interest groups, tech companies, and content creators who have urged them over the past few months to move forward on the NPRM, ensuring at the same time that it asked the right questions. Going up against the might of Comcast, Time-Warner, and their henchmen, succeeding in getting a strong, pro-consumer NPRM, was a triumph on its own.
So now is the time to bolster those who would promote consumer choice in the face of Big Cable’s onslaught of misinformation. That campaign will be two-pronged. Opponents of video choice will take aim at those pro-consumer Commissioners to undermine their nerve and forestall any further progress towards a true rule on their home turf at FCC headquarters; but they will also disseminate untruths on Capitol Hill. As such, we can expect the usual interference strategy, with certain members arguing that the appropriate approach is a legislative one, yet another delay strategy to head the FCC off at the pass.
Of course, Congress’s job is always to legislate where it sees fit, but in the case of video device competition, Congress has already had it’s say: a little over a year ago, in the STELAR Reauthorization, it repealed the integration ban and instructed the FCC to convene a strategy team, pursuant to its authority in Section 629 of the Telecommunications Acts, to construct a modern, competitive video device solution. Now that the Commission is doing exactly as directed, Congress’s role should be not to interfere at the behest of Big Cable, but to let the FCC finish the job.
All of that is to say: we’re almost there! For too long consumers have been shelling out to their cable companies in perpetuity for outdated, unimaginative set-top boxes they don’t actually own. Meanwhile, myriad creators with as many voices have to jostle one another for the limited spots cable will bestow to an annointed few, or else be relegated to obscurity. Now is the time to make sure both the FCC and Congress hear from Americans that a competitive device solution is will lead to a more open, vibrant, and diverse communications ecosystem – and that’s something we should all support.