Markey Sees Set-top Debate Mirroring Net Neutrality Battles

Sen. Ed Markey, D-Mass., compared the FCC's coming Thursday set-top box NPRM vote to the recent net neutrality fights, lauding the agency in both instances. “This is gonna be a debate that is fairly identical to the debate we had over net neutrality,” Markey said Wednesday. “Many of the same arguments are going to be made. But the truth is, it is technologically possible to effectuate this revolution.”

Markey spoke on a press call with Public Knowledge President Gene Kimmelman and other advocates favoring the FCC’s approach on set-top issues. Markey, an architect of the Telecom Act and its Section 629 language that undergirds current FCC actions, was the catalyst for the current proceeding. He opposed ending the set-top integration ban during 2014’s satellite TV law reauthorization but ultimately accepted such an end in exchange for the creation of the agency’s Downloadable Security Technology Advisory Committee working group. It was that group’s process over the past year that led to the current proposal from FCC Chairman Tom Wheeler.

Wheeler’s actions have split lawmakers. He has received support from Markey and House Communications Subcommittee ranking member Anna Eshoo, D-Calif., who sent a letter of support Tuesday with a dozen Democratic colleagues, including Rep. Raul Grijalva, D-Ariz., a co-chairman of the Congressional Progressive Caucus (see 1602160067).

Others disagree and pointed to concerns about copyright and privacy. “While we encourage growth and competition in the marketplace, too much government regulation can become burdensome and hurt the innovation it attempts to foster,” a group of 25 House lawmakers told Wheeler in a letter led by Rep. Tony Cardenas, D-Calif., and sent Wednesday. “We have been approached by many companies, organizations and constituents that would be directly affected by this proposal, and as Representatives it is our responsibility to communicate their concerns. … As you continue to adjust the proposal in preparation for the meeting, we strongly urge you to take into account independent programmers. These providers share their work through carefully negotiated placement, scheduling, distribution and advertising agreements. … Any proposal must respect existing contracts so that independent and minority programmers can control the presentation of their content and secure funding essential for diverse voices to thrive in the marketplace.”

Far more lawmakers have worried about such a set-top proposal than have supported it. The bipartisan House Creative Rights Caucus sounded an alarm in a letter Tuesday, as did Senate Commerce Committee ranking member Bill Nelson, D-Fla., in a letter last week. Rep. Janice Hahn, D-Calif., signed both Eshoo’s supportive letter and Cardenas’ concerned letter. Other backers of the Cardenas letter included Rep. Ron Kind, D-Wis., co-vice chairman of the centrist New Democrat Coalition and Democratic chief deputy whip, and Rep. Eliot Engel, D-N.Y. Congressional Black Caucus members also warned the FCC of such a proposal in December, in a letter with 30 signers led by Rep. Yvette Clarke, D-N.Y. “The FCC’s AllVid-style proposal to regulate the video device market is facing rising bipartisan resistance in Congress,” the Future of TV Coalition, comprising cable and telecom industry opponents of Wheeler’s proposal, said in a Wednesday news release. It cited 62 signatories across these letters that “question the FCC’s approach.”

“The FCC is finally on its way of fulfilling its promise to consumers of a competitive and robust video box market,” said Markey, a Commerce Committee member. “This is a huge day.” He said he suspects the FCC will proceed much as it did on net neutrality and craft a rule consistent with the statute. He and Kimmelman said they suspect litigation is coming but believe the FCC proposal should hold up just fine under any legal scrutiny. “We know it’s going to be vigorously contested, but at the end of the day, I think we’re going to be victorious,” Markey said.

“I liken the open set-top box to browsers, really,” said Eric Easter, chairman of the National Black Programming Consortium. “Browsers opened up a new world and let people see what choice was really out there.”

Markey and Kimmelman disputed that privacy protections will truly be vulnerable under the proposal, as some industry officials have argued. Public Knowledge is “totally confident” that the specific requirements as they exist now “can be fully honored even with third-party devices,” Kimmelman said, pointing out that these protections can be part of the FCC conditions in handing off the content for video streaming. “I don’t know what will be proposed, precisely,” Kimmelman added. Markey also disputed that the rulemaking would create any privacy vulnerabilities. “Those issues exist whether there is a new rulemaking or not and I think it is imperative that privacy become a high priority for not just the FCC but other federal agencies in order to ensure there is a privacy bill of rights that is put on the books,” he said. An internal Eshoo fact sheet from early February also disputed any increase in privacy vulnerabilities, which AT&T on Tuesday insisted are real risks (see 1602160072).

Both Markey and Kimmelman referred to the lobbying of the cable and programming industries against the proposal. Those industries are seen as especially engaged, and the topic is believed to be likely for FCC oversight hearings on Capitol Hill next month.

“I believe the cable industry is a bit on the run here and is desperate to not have to give up this cash cow, so I wouldn’t be surprised if we saw a variety of compromises or supposed compromises or delay tactics to stop this from going forward,” Kimmelman said. “We expect to see a campaign of misinformation, disinformation.”

Public Knowledge is part of a Consumer Video Choice Coalition that includes Google, Incompas and TiVo and has put on demonstrations for Capitol Hill staffers at Google’s Washington headquarters (see 1601290060). Kimmelman tried to minimize Google’s role: “I don’t even know if Google is prepared to enter this market,” Kimmelman said. Markey said that maybe half the country will retain cable boxes following the proposal but it’s important to give consumers the option for change. “Twenty years after the Telecommunications Act, 99 percent of the people are still renting their box off of one company, one set of companies,” Markey said. “At this pace, it will take 100 years to get into a competitive marketplace.”