Today, an FCC divided along partisan lines adopted an unbalanced notice seemingly predestined to lead to a new, anti-consumer government technology mandate on video set-top boxes.
The FCC’s action is disappointing - but not because the Commission voted to consider how to increase consumer choice in retail devices. That's a worthy goal that we support as well. The Commission’s divided action is flawed because it ignores the FCC’s own technical advisory committee report and instead puts the Commission’s thumb on the scale by endorsing a government-mandated technology solution. The right way to proceed would have been to issue a balanced rulemaking Notice and develop an appropriate record to make a rational judgment.
This vote squarely conflicts with the bi-partisan directive Congress sent to the FCC to establish a technical advisory committee to study device security issues to further the retail availability of devices. During over half a year of hard work, the technical experts considered two alternative visions, and did not reach a consensus. Today’s action inexplicably ignores the market-driven "apps" based approach suggested by the technical committee, which is rapidly proliferating in the market and giving consumers unprecedented options to receive video programming services.
Not surprisingly, objections to the proposal have been growing – and the objections come from a variety of independent and bipartisan sources. Members of Congress, Democrats and Republicans alike; numerous small and independent programmers; and diversity organizations, among others, have weighed in with significant concerns. For example, in a letter to the FCC last week, Senator Bill Nelson, the Ranking Democrat on the Senate Commerce Committee, laid out the advances in the video market, and advised that "the FCC must take a measured approach" in this rulemaking, including protecting programmers from interference by third parties.
Unfortunately, the majority of Commissioners have chosen to ignore the many voices of reason and instead to pursue a proposal that strays well beyond the FCC’s authority under the Communications Act, and would violate copyright and other statutory and constitutional protections.
And it’s just not enough to respond that the plethora of substantive objections that have been raised to this proposal will somehow be "taken care of," including through voluntary undertakings and certifications.
The playing field of the FCC in imposing technological mandates is littered with failure. The FCC imposed a CableCard technology mandate on cable operators years ago purportedly to drive greater retail availability of set-top boxes, but after more than $1 billion of costs to consumers, that approach has proven to be ineffective. Just five years ago, the FCC considered, and wisely abandoned, a similar proposal, known as "AllVid." Since that time, we’ve seen an explosion in innovation and competition in the video marketplace.
A new government technology mandate makes little sense when the apps-based marketplace solution also endorsed by the FCC’s technical advisory committee is driving additional retail availability of third-party devices without any of the privacy, diversity, intellectual property, legal authority, or other substantial concerns raised by the Chairman’s mandate.
We look forward to providing constructive input in this proceeding, and we hope the FCC will ultimately decide against this major step backwards for consumers and the video marketplace.