Although Webcasters are likely to be left out of an expected World Intellectual Property Organization (WIPO) treaty extending copyright protection to broadcast electronic signals carrying radio and TV programs, support may be growing for their inclusion in some later protocol, we're told. As delegates to WIPO’s Standing Committee on Copyright & Related Rights (SCCR) prepare to meet Nov. 3-5 in Geneva, the issue of protecting Webcaster broadcast rights remains “so divisive” it could get in the way of a broadcast treaty, said Michael McEwen, secy. gen. of the North American Bcstrs. Assn. (NABA), which takes part in SCCR meetings as an observer. Some say that, despite the fact that the U.S. delegation is the only one openly calling for inclusion of Webcasters, there’s some indication others may be quietly moving in that direction.
LAS VEGAS -- Using forbearance proceedings to deal with the court decision overturning the FCC’s definition of cable modem service as an information service “may be a tricky path,” said Daniel Gonzalez, aide to FCC Comr. Martin. FCC staffers speaking on a Tues. panel at the USTA convention here also said Commission decisions on petitions for reconsideration of the Triennial Review Order (TRO) would take time, but some parts could be decided by the end of the year.
ORLANDO -- The FCC is “incapable of coming to a concise decision on the basic issues that impact the growth of the telecommunications industry,” CompTel Chmn. Richard Burk said at a CompTel trade show here. He said the evidence of that was “the extraordinary long delay” in issuing the Triennial Review Order (TRO) text and the “prominent inconsistencies in those rules.” He said the Commission needed “some re- evaluation so the Administration can ensure that rules are implemented properly and consumers’ best interests are kept in mind.”
One way or another, a court decision that effectively would allow unrelated Internet service providers to piggyback on cable’s broadband lines (CD Oct 7 p1) will not take effect, NCTA officials said confidently Wed. in a press briefing. NCTA Pres. Robert Sachs said that while the decision by the 9th U.S. Appeals Court, San Francisco, had left some cable companies uneasy, for the most part they saw that development as one of many to come along a path toward deregulation.
With questions about Voice-over-Internet Protocol (VoIP swirling in the industry, FCC Comr. Abernathy told the Goldman Sachs Communacopia conference in N.Y.C. Wed. that the time was now for the Commission to look at the technology and see where it fit into the regulatory scheme. Several companies, including some phone and cable providers, would like to know whether VoIP will be part of the Universal Service Fund, for example, before pushing forward with long- term business models.
The NAB, in reply comments to the FCC on the state of video competition (CD Sept 29 p9), said the Commission should take any claims by satellite carriers of capacity limits with “several pounds of salt.” The NAB said some satellite operators had said limits on capacity should preclude regulations on local-into-local carriage of all TV stations in all markets. “A careful parsing of the satellite industry’s alleged capacity limits as an excuse to avoid the imposition of additional carriage requirements reveals critical qualifiers that render these claimed limitations meaningless,” NAB said. Comcast wrote that deregulation had been an “indisputable success” and urged the FCC to discuss in its 10th annual report to Congress not just beneficial changes of deregulation but also ways regulation had hindered the process -- and to build a record for further deregulation. Fox, NBC/Telemundo, Viacom and Disney, in a joint reply, said comments by the American Cable Assn. (ACA) and Cox ignored principles of retransmission consent surrounding “good-faith negotiations.” The networks said ACA and Cox were using their comments to address “unfounded” retransmission consent grievances. “Cox and ACA simply want a free ride on some of the most valuable programming they carry -- the broadcast networks,” the networks wrote. They said bargaining proposals that included various forms of consideration in exchange for retransmission consent were “expressly permitted” by the FCC’s rules and benefited cable operators. ACA and Cox questioned tying agreements and what they called “forced carriage” of extraneous networks by the network companies. Consumer Federation of America (CFA), Consumers Union (CU) and several other consumer-oriented groups wrote in their joint reply that the video marketplace was dominated by “the whims of a few, powerful media gatekeepers” and that the industry was becoming increasingly concentrated. Independent program producers and others have been hurt by this, they wrote. They suggested the Commission take 3 steps: (1) Complete the cable horizontal ownership proceeding, reinstating the 35% ownership cap. (2) Reverse its “hands-off” policy on broadband by prohibiting service providers from interfering with content and allowing access to the cable plant by rival ISPs. (3) Take steps to prohibit cable MSOs or cable network programmers from requiring independent programmers “to agree to onerous contractual conditions related to striping credits.” The National Rural Telecom Co-op (NRTC) said competition couldn’t be determined accurately without knowing the number of homes that had access to both DBS and cable. While cable claims its service is ubiquitous, a number of rural areas don’t have access to cable, NRTC said, so the benefits of competition “may not be reaching up to 23 to 25 million households.” While the commitment by DirecTV and News Corp. to provide local channels in all markets as early as 2006 and no later than 2008 is positive, it said, the “difference between 2006 and 2008 remains significant.” SES Americom said its proposed Americom2Home platform would provide additional competition in the DBS market by expanding offerings and innovative services. It said it encouraged the Commission to study interference concerns raised by DirecTV, but “the DBS service employs frequency bands that have been internationally planned under the auspices of the [ITU]. Those band plans specify international coordination as the appropriate method for resolving all interference issues.” The company also said DirecTV was merely attempting to delay the entry of competing satellites with its recent petition for rulemaking on whether satellites should be licensed with spacing of less than 9 degrees. Meanwhile, the CEA said the recent adoption of the plug-&-play rules was good for the industry, but “the success of competitive provision relies on the competitively supplied devices.” CEA said the implementation of CableCards shouldn’t be postponed further than their July 1, 2006, implementation date: “It would be damaging to competition were cable operators able to charge an inflated price for the CableCards necessary to use competitively-acquired equipment.”
The FCC is likely to have a DTV broadcast flag item on its Oct. meeting agenda and “there’s a good deal of unanimity on the Commission on this issue,” said the former chief of staff of Chmn. Powell. Speaking at the Computer & Communications Industry Assn. (CCIA), Marsha MacBride said that despite outside concerns about the FCC’s acting, there was a narrow window if any flag standard could be incorporated in the next production cycle of DTV sets, following the plug-&-play agreement: “If we do it in 3 months we might as well do it in a year.” CCIA would be fine with a year’s wait, as it opposes the flag and believes it won’t work. MacBride said “there’s no sense in adopting a regulation that’s not going to work,” but said the FCC had its own experts studying the issue. She said the agency also had to examine “if it’s not going to do everything, are there still benefits [in imposing a flag] that outweigh the harms?” Some in Congress have questioned whether the FCC has the authority to impose a flag. “We're taking it very seriously the jurisdiction issue, and if we weren’t, we are now after yesterday” when the do-not-call list was thrown out by U.S. Dist. Court, Oklahoma City. She said if the FCC didn’t promote a flag, Congress must do so because otherwise some broadcasters won’t put out top content. Sen. Brownback (R- Kan.) repeated his criticism of possible FCC plans to mandate a DTV broadcast flag. Last week, he introduced S-1621 that would ban federal technology mandates. Brownback said a more appropriate way to handle protecting DTV signals would be the industry-crafted plug-&-play agreement between the cable and CE industries and ratified by the FCC. He was less enamored of a possible FCC rulemaking on a broadcast flag: “I don’t think this is the way to go.”
DirecTV asked the FCC to open a rulemaking proceeding to determine the feasability of authorizing new DBS satellites in the current spectrum with spacing of less than 9 degrees. While 9 degrees spacing is a “foundation” of the industry, DirecTV said, there have been applications from U.S. entities and others proposing lower-power DBS satellites for location between existing satellites: “The question of whether the short-spaced ’tweener’ satellites can be authorized, and if so, their technical characteristics and the spacing that they must observe in order to protect the operations and future growth of deployed U.S. DBS systems, are questions best answered in a rulemaking proceeding.” DirecTV said if the Commission authorized the “tweener” satellites, it should protect existing satellites operating in the DBS (12 GHz) band and preserve the “technical flexibility required for such operational DBS systems to continue to grow and innovate as they strive to provide vigorous competition to incumbent cable television systems.” Additionally, the company said the rulemaking should ideally address: (1) The feasibility of reduced orbital spacing. (2) Protection criteria. (3) The application of existing rules to new orbital locations, including the auction requirement for DBS slots. (4) Rules for non-U.S. operators seeking authority to provide DBS services.
The FCC voted unanimously Wed. to adopt rules governing one-way digital, cable-ready TV sets, pushing the digital TV transition one step further. The order largely accepts the technical, labeling and encoding rules in an agreement reached by the cable and consumer electronics (CE) in Dec. However, the FCC made some changes, one of which was to order that the sets include over-the-air digital tuners -- something broadcasters wanted. The order also would allow computer manufacturers and others to hook their wares up to cable systems if the devices complied with the same content protections prescribed by the FCC. FCC Media Bureau Chief Kenneth Ferree said that was “not just a rubber stamp” of the industries’ original agreement.
The FCC plans to take up at its Sept. 10 agenda meeting an order on regulations concerning how to create a digital TV standard for “one-way” cable services. The order will cover rules to facilitate the connection of customer premises equipment purchased from retail outlets to multichannel video programming distributor systems. Speculation on the item has centered in recent weeks on whether the FCC will accept, in whole or in part, the “plug-&-play” agreement between the cable and consumer electronics industries that would create a digital TV standard for one-way cable services. That agreement includes a package of commitments and FCC rules, including new encoding rules that would set the standard on how copyright holders could limit the ability of consumers to manipulate content with certain code names. In other areas, the FCC is set to consider a proposal to review its cost- based pricing rules for UNEs. Separately, the FCC will consider a proposal seeking comment on the conditions under which Secs. 251(c) and 271 of the Communications Act should be deemed to be “fully implemented” under Sec. 10(d) of the Act. Additionally, the International Bureau will present a report on the commercial satellite industry. The report will be the first in a new series of annual reports the Bureau has planned. The Wireless Bureau and the FCC’s National Coordination Committee (NCC) on Public Safety will report on the NCC recommendations for interoperable public safety use of the 700 MHz band. In other areas, the FCC will consider a proposal on how to change spectrum regulations to facilitate the rapid rollout of different kinds of wireless services in rural areas. Finally, the Commission will consider a separate notice of proposed rulemaking on changes to Parts 2 and 15 of its rules, which cover unlicensed devices, to provide flexibility in the design and authorization of such devices.