A growing cable industry sense of its concerns being ignored by FCC Chairman Tom Wheeler has raised the likelihood that whatever rules come out of the agency regarding set-top boxes, broadband privacy and business data services almost surely will be met by legal appeals, cable executives and experts tell us. "I think everybody takes for granted that everything is going to end up in court," MCTV President/American Cable Association Chairman Robert Gessner said in an interview Friday.
If the TV incentive auction fails, Congress probably never will authorize a second one, FCC Chairman Tom Wheeler said Thursday at the MoffettNathanson conference. Wheeler also said he plans to move forward while he's still chairman on all the big-ticket items he has teed up. Wheeler was interviewed at the conference by analyst Craig Moffett.
Sen. Orrin Hatch, R-Utah, repeated his concerns about the FCC’s set-top box rulemaking Wednesday, in a letter to Chairman Tom Wheeler. “I am particularly concerned that the proposed rules could upend carefully negotiated licensing agreements between multichannel video programming distributors (MVPDs) and content providers. ... Approaches that ignore the need for licensing or undercut existing licensing agreements will likely increase costs for consumers, reduce choices, and discourage innovation,” Hatch said in the letter. “While you have repeatedly said that copyright law will not be impacted by the proposal, the terms of the licensing agreements between MVPDs and programmers are the key mechanism for protecting the copyrights of content owners, and these are the very terms that third-party devices and apps will be permitted to disregard under the FCC’s proposal.” He requested “all relevant information that will provide a clearer understanding of exactly how the proposed rules will ensure those objectives are met,” referring to maintaining existing business and content relationships. Hatch raised the issue during a hearing last week (see 1605110062). The FCC has defended the NPRM, and House Communications Subcommittee ranking member Anna Eshoo, D-Calif., and Rep. Mark Takano, D-Calif., are defending the set-top NPRM in a letter they circulated to colleagues. "Before you decide to weigh in on the FCC’s proposal, I urge you to talk to your constituents and ask them how they feel about ‘the privilege’ of paying hundreds of dollars a year in fees to rent their cable box," Eshoo and Takano said. "I also urge you to read the fact sheet below which dispels some of the most common myths about the FCC’s proposal." They tallied the NPRM's supporters, which they say includes President Barack Obama: "In April, the President of the United States endorsed the proposal." The Future of TV Coalition, which opposes the NPRM, shot back at the letter that Eshoo and Takano are circulating. "This debate isn’t about whether consumers should have alternatives to leased set-top boxes. All sides agree they should, and this is already happening in the market today," Future of TV said. "This debate is really about the best way to advance that innovation even further while respecting the copyright, licensing, diversity, and privacy characteristics of the TV ecosystem." It released its own fact sheet.
BOSTON -- Any number of next steps, from a report or rulemaking to "some other option," are possible after the FCC's independent and diverse programming notice of inquiry and related workshops, said David Grossman, Commissioner Mignon Clyburn's chief of staff, on an INTX 2016 panel Tuesday. Jessica Almond, aide to Chairman Tom Wheeler, said Wheeler similarly is interested in some next step in the programming NOI, but gave no details on what. Wheeler is scheduled to talk Wednesday.
BOSTON -- Criticism of FCC regulatory plans (see 1605160033 and 1605160057) mounted as INTX continued. On a Tuesday panel of industry privacy lawyers including ex-FCC and ex-FTC officials, all speakers had harsh words for the FCC's ISP privacy NPRM. In a later Q&A at INTX, an AT&T executive also voiced concerns about various FCC proceedings. A commission spokeswoman defended the agency, in a follow-up email to us.
BOSTON -- A panel Tuesday of the FCC's four regular commissioners at INTX 2016 morphed into a referendum largely along party lines on the agency's set-top box rulemaking and broadband privacy rulemaking. Commissioners Mignon Clyburn and Michael O'Rielly repeatedly debated the FCC's overall regulatory role. Section 222 in Title II of the Communications Act deals with telephone records, not broadband data services, so it can't be cited as a basis for broadband privacy regulation, O'Rielly said: "The words on the page [of the law] actually have to mean something." But Clyburn said "We are not in the 1800s" and it's up to regulatory bodies to interpret how older laws apply to modern technology. It's the job of the legislative branch to fix those laws, O'Rielly responded. The panel was taped as an episode of C-SPAN's The Communicators.
BOSTON -- With the pay-TV bundle threatened by competition and cord cutting, four stock analysts disagreed on a panel at the INTX show whether cable operators face a financially bright or somewhat challenging financial future, compared with other sectors of the multichannel video programming distributor and content industries. But all the analysts, including some who think the cable industry is the best poised for success in the MVPD/programmer business, said cable will be subject to increased scrutiny and ultimately regulation from Washington and particularly the FCC. They see the FCC trying to promote competition, with some contending that benefits big tech companies like Google.
NCTA asked the FCC to extend deadlines in the business data service (BDS) rulemaking by at least 45 days for initial comments and 30 days for replies. "Faced with an opportunity to resolve a complex proceeding regarding rates charged by [ILECs] that is finally ripe for resolution after more than a decade of regulatory activity, the Commission instead issued a complicated, voluminous Further Notice that significantly expands the scope of the proceeding to cover new services, new providers, and new issues," NCTA said in a motion filed Friday in docket 16-143. "The pleading cycle adopted by the Commission fails to reflect the radically expanded scope of the proceeding, severely constrains the ability of NCTA’s member companies to meaningfully participate in this proceeding, and lends credence to concerns raised by one commissioner that ‘the outcome is predetermined.’”
The Congressional Privacy Caucus co-chairs are concerned “that existing privacy protections enjoyed by cable and satellite subscribers will not be retained as the Commission moves forward on a rulemaking regarding third party navigation devices,” they told FCC Chairman Tom Wheeler in a letter Wednesday. Reps. Diana DeGette, D-Colo., and Joe Barton, R-Texas, are the co-chairs who signed the letter. They worried about the set-top box NPRM’s proposed self-certification for third parties and a potential outcome that would “harm consumers,” they said. They want to hear from the FCC “directly,” they said. The Future of TV Coalition, which opposes the NPRM, posted the letter. The agency has defended the NPRM as helping to cut consumer costs and add to their options.
Members of the Senate Judiciary Committee used a Wednesday subcommittee hearing on ISP privacy rules to needle FCC Chairman Tom Wheeler on his set-top box rulemaking. “I have long supported efforts to promote meaningful competition in the set-top box market, knowing that customers will benefit from increased choice in how they interact with their cable programming,” Judiciary Committee ranking member Patrick Leahy, D-Vt., said in his opening statement. “However, the benefit of increased choice should not come at the expense of important privacy protections that currently apply to set-top boxes, which receive extensive information about customers’ viewing habits. I am also tracking closely the impact the FCC’s proposal would have on content creators, to ensure that their rights are fully protected as third-party platforms make their content available. As the FCC opens up the market for set-top boxes, consumers and programmers should have the same rights and protections that they have today.” Sen. Orrin Hatch, R-Utah, also cited the set-top proposal during remarks at the hearing, saying, “I continue to be concerned about how the proposed set-top box rules would impact video content.”