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You Should be Able to Watch TV How You Want

July 16, 2013 ,

By misreading the law, the FCC took away your ability to buy alternative set-top boxes like Tivo and Smart TVs. We think that’s wrong. 


Congress
recognized customers should not have to rely on their cable companies for a
set-top box as early as 1996.  When they
passed the updated Telecommunications Act that year they included Section 629,
which required the FCC to make sure consumers would have a choice of video
devices, just like they can pick what kind of TV to buy, or what model of
wireless handset to use.  

Just like your ISP doesn’t make its subscribers
use only Macs, or only PCs, your cable company shouldn’t make subscribers use
the set-top box it provides.

To
implement the law, the FCC and industry created the CableCARD system. Because
of CableCARD, you can buy a set-top box at a retail store and plug it into your
cable system.  The device will still work
even if you switch your provider from Comcast to DirectTV later on. This
facilitates competition in the subscription TV market by making it easier for
people to switch providers.  And bringing
non-affiliated companies into the set-top box market leads to improvements like
the ability to record TV programs.

A Limited Exemption Request Goes
Haywire 

Last
November, Charter Communications asked for a limited waiver from one of the
CableCARD rules so that it could implement a new security measure in its
set-top boxes–one that would violate existing CableCARD rules. Public
Knowledge opposed the waiver

The FCC’s Media Bureau
granted Charter the waiver, but it went further than Charter asked, and
weakened the CableCARD rules significantly. To do so, it relied on a recent
case from the D.C. Circuit: Echostar v. FCC.

In the Echostar
case, for administrative law reasons, the court vacated a recent
CableCARD-related FCC order.  However,
this action did not vacate the entire CableCARD regime.

Unfortunately,
when granting Charter’s request, the Media Bureau incorrectly interpreted Echostar
as eliminating CableCARD–effectively making Charter’s request for a limited
exemption moot.  The Bureau acknowledged
that granting the waiver could lead to a fractured market for set-top boxes by
allowing cable companies to adopt differing non-CableCARD security standards.  But it did not find that prospect sufficient to
deny the waiver request.

The Wrong Place for Big Changes 

The Media Bureau interpreted the DC
Circuit’s opinion in Echostar much too broadly. But even if the Bureau’s
interpretation of the court’s decision was valid, a waiver request proceeding
is an inappropriate way to dramatically change the agency’s implementation of a
statutory mandate. The Media Bureau should not, on its own motion, drastically
weaken the CableCARD system, leaving Section 629 of the Act without effective
implementation.

CableCARD is still the best existing way to implement many of the goals
of 629. If the Commission wants to replace it CableCARD with something better,
it must follow its procedural requirements and solicit comment from the public
before making these kinds of changes. TiVo has asked the Media Bureau to
reinstate the rules the Bureau struck down, a request PK supports.  Consumers Electronic Association has also asked the Commission to reconsider
this issue.

If the Decision Stands, Consumers Lose

If this decision stands, consumers face rising costs for switching cable
providers and continue to be denied choice in video devices. CableCARD may not
be perfect, but until now it has served its purpose to promote competition, and
facilitate interoperability and device portability. New entrants continue to
look to it as a way to enter the video device market–for example, Samsung is
developing a new “Smart Media Player” set-top device that has an embedded
CableCARD, and will combine access to subscription television with access to
over-the-top video applications. 

Section 629 is Still on the Books

Finally,
Section 629 is still in effect. The FCC is required to implement the law as
Congress enacted it, either through CableCARD or some other mechanism, such as
AllVid. The subscription television
market has changed dramatically since the Telecommunications Act was passed in
1996, but the basic principle of Section 629 has not. Consumers should have
competitive choices in the communications equipment market. Until Section 629
is effectively implemented with some new technology, the CableCARD rules should
remain in effect.

Original image by Flickr user Daniel Go.