Get complete coverage of the FCC's set-top proposal.

Comcast, which has already slammed the FCC’s proposed set-top rules, took another swipe at them in a recent meeting with commission staffers that expanded on the MSO’s (and the cable industry’s) argument that using an apps-based approach is the best way forward.

For starters, Comcast argued in an ex parte filed May 11 that the software code it uses to manage requests for programming and data between its set-top boxes and authenticated Xfinity TV apps and where the programming is cached on the network will likewise need to be supported on third-party video devices using an app.

Comcast told the commission that “running our network code directly on third-party devices without our application was not feasible for a variety of reasons,” noting that that MVPDs use different network infrastructures and that the code that one MVPD develops for this purpose differs from the code developed by other MSOs.

Additionally, Comcast argued that code “is regularly updated to accommodate network and service changes, and corresponding changes would be required in the third-party device (or app); and that programmers and content owners require a trusted execution environment as a key element of a strong content security and content presentation regimen.”

Comcast also said its IP cable service is delivered on a unified,  cloud-to-ground, unicast basis and that the code in its app uses network management tools ensure efficient use of bandwidth -- something that, Comcast claims, would be lost under the FCC’s proposal.

Comcast also raised concerns about how programming “entitlements” (marketing and business rules)  could be impacted by the proposed rules, noting that Comcast and other MVPDs do not deliver entitlements in a standardized way, meaning that the FCC’s rules would require “significant changes” to entitlement servers and other pieces of MVPD networks.

The MSO also touted its new Xfinity TV Partner Program for retail devices, with initial work involving Roku and Samsung, explaining that it relies on HTML5 with premium media extensions  --  calling it a “widely adopted” open standard.

Comcast also attempted to address an issue raised by TiVo and others that an apps-based approach would constrain the use third-party user interfaces. Comcast countered that retail partners would still be free to develop and use their own UIs because Comcast’s HTML5-based apps would appear as an element in their  “umbrella” user interfaces alongside other apps.

Those arguments appear to have had little sway on FCC chairman Tom Wheeler.

The proposal “has gotta be done. And that’s the road we are headed down,” Wheeler said in late April. As for Comcast’s new program, Wheeler said it “is proving our point that you can take a third-party device, put set-top box functionality into it, and protect copyright and the economic ecosystem.”

The FCC’s ban on integrated security set-tops ended last December,  and the impact of it continues to be seen in the latest batch of CableCARD deployment figures to emerge from the National Cable & Telecommunications Association.

In an April 27 filing with the Federal Communications Commission, NCTA said the nine largest U.S. incumbent cable operators have deployed 55 million operator-supplied set-tops with CableCARD modules – about the same number it reported in its last disclosure in February 2016.

Meanwhile, the number of CableCARD modules deployed in retail products such as TiVo boxes reached 621,400, up from 589,000 in the February report.

The NCTA has been issuing these reports since the original ban took effect in July 2007.

The FCC, meanwhile, is pushing ahead with new set-top box rules that it intends to apply to all MVPDs, not just cable operators. The cable industry has argued that new mandates are not needed, given momentum of the market toward an apps-based economy.

However, last week FCC chairman Tom Wheeler was undaunted in the pursuit of new rules, holding that his proposal "has gotta be done. And that's the road we are headed down."

Wheeler also was not moved by Comcast's launch of the Xfinity TV Partner Program, which, early on, will see an app for the MSO's full suite of pay TV services reach Samsung smart TVs and the Roku streaming platform. "What Comcast giveth, Comcast can taketh away," he said. 

Last week, Comcast Cable president and CEO Neil Smit said more than 40 companies have inquired about the program since it was launched, and labeled the FCC's initial, critical response to the program "uncalled for." 

The Consumer Video Choice Coalition says that more than 100,000 "consumer voices" have contacted the FCC in support of its set-top box proposal.

That proposal is to give third-parties, which are represented in the coalition, access to MVPD set-top content and data so they can wed it with over-the-top offerings in a gateway device.

Those comments were generated by the Unlock the Box campaign, which was also the FCC's branding on the effort, and via Change.org's similar online petition effort.

While edge providers, including Google and Amazon, support the proposal, many others do not, including cable and telco ISPs, advertisers, and some Hill Democrats, at least as the proposal currently stands. 

Among those supporting the Unlock the Box campaign are Consumer Reports, Common Cause, Demand Progress Fight for the Future, and Public Knowledge, who have also pushed for strong network neutrality rules.

National Cable & Telecommunications Association President Michael Powell says his association will sue if the FCC's set-top proposal is adopted.

In a press conference with reporters outlining the legal issues NCTA sees with that proposal, Powell said that the FCC has articulated its own vision of a product they want to see created, but one that would illegally re-use cable data and content to promote a third-party service.

He said that if the FCC continues along that path, the set-top proposal is not repairable and the association will take it to court.

READ MORE of MCN's coverage of the FCC set-top plan. 

The FCC has said its proposal does not force cable operators to create a second box, but Powell said that was semantics and that even some of the proponents concede that to meet the FCC's requirements, the cable industry would likely have to design and develop a new piece of equipment in order to make the info available to a third party.

"An agency of limited jurisdiction has to act properly within that jurisdiction," Powell said, making it abundantly clear the NCTA does not believe the FCC has not done so in this case.

He said that the statute empowers the FCC to create competition in navigation devices, not new services. "Every problem does not empower an FCC-directed solution. The agency is not an agency with unbridled plenary power to roam around markets and decide to go fix inconveniences everywhere they find them irrespective of the bounds of their authority."

He said the marketplace is already, obviously, providing that competition. He pointed to a whole host of streaming services that have gone from being "mail order companies" to the world's larges video subscription services (Netflix) in the course of five years.

He cited hosts of IP-enabled boxes and devices including Apple TV, Amazon Fire, Roku. "How many more boxes does it take to declare that the market is trying to solve the problem."

During the briefing, attorneys Ted Olson (former Solicitor General) and Helgi Walker, partners at Gibson, Dunn & Crutcher, previewed the legal tack NCTA will take if it has to go to court.

They argued that the FCC 1) is only authorized to promote equipment, not unbundle the service to create a new derivative service; 2) that the set-top proposal would violate other provisions of the Communications Act by regulating the content and provision of cable service; 3) that the proposal exceeds Constitutional limits on FCC authority by outsourcing its regulatory authority in a standards-setting body; 4) that it would violate free speech rights of programmers and distributors' 5) and that the proposal is arbitrary and capricious (in violation of the Administrative Procedures Act).

“The Chairman’s proposal implement’s Congress’ clear mandate to ensure a competitive marketplace. Nothing in the proposal requires a mandated technical design or requires pay-TV providers to re-engineer their networks," said FCC press secretary Kim Hart. "In fact, many MVPDs have already started the process of making information and content streams available through their own apps. The Chairman’s proposal simply opens that information to competitive devices and apps.”

Hart also responded to the claim the proposal threatened copyright protections and that it should not be outsourcing decisions to standards bodies.

“The proposal is clear—the Commission is committed to protecting the content creator’s copyright, and will not interfere in the business or content agreements between MVPDs and content providers," Hart said. "Copyright protections and remedies will remain fully intact. The Copyright Office’s procedures for enforcing copyright will remain intact, and content creators retain all of their right to utilize those remedies.  The Chairman’s proposal would require third parties to abide by licensing terms agreed to by the MVPDs in order to receive the information from the MVPDs, just as it does with CableCARDs today.”

“When consumers are able to access all their content in a single place, they will be better able to find the programming most relevant to them. In turn, content creators, including those who are locked out of the pay-TV system today, having easier access to consumers will lead to more and better programming. Nothing in the proposal seeks to allow disaggregation of content.”

As to the use of standards bodies, Hart said: "Section 629(a) of the Communications Act states that the Commission shall consult with standards bodies  when adopting rules to assure competition in the way that consumers access their pay-TV service. The cable industry urged the Commission to avoid technology mandates, therefore the NPRM propose that standards bodies develop the specific standards for MVPDs to rely on to provide information flows, and to ensure third parties comply with security and privacy requirements.   This will allow the Commission to set  ground rules that are technology-neutral and allow all parties to respond to changes in the marketplace and technology.”

Comcast and NCTA were using the operator's just-announced expansion of the IP-enabled retail devices that can be used to access its Xfinity TV app as an example of why the FCC does not need to disaggregate set-top content by force to spur navigation device competition. An FCC official suggested that was not the case.

The announcement comes as the FCC is collecting comment on the controversial proposal and cable and other ISPs are pushing back hard and suggesting a legal fight is in the offing.

In a blog post about the launch of the Xfinity TV Partner Program, Mark Hess, SVP, Office of the Chief Technology Officer, at Comcast, said Comcast apps have already been downloaded 23 million times to a variety of retail devices.

"In light of the success of the apps-based model in the marketplace," he said, "the far-reaching government technical mandate being currently proposed by the FCC is unnecessary. The FCC’s proposed set-top box mandate threatens to undermine this highly-dynamic marketplace, create substantial costs and consumer harms, and will take years to develop -- only to be likely outdated by the time it reaches the marketplace – all in an effort to achieve what apps are already delivering for consumers."

National Cable & Telecommunications Association president Michael Powell, no fan of the set-top proposal, was ready with a rapid response to the announcement by Comcast -- NCTA's largest member -- that also tied it to the FCC.

“Today’s announcements by Comcast, Roku and Samsung demonstrate how innovative marketplace solutions are enabling consumers to enjoy their favorite pay TV programming on a growing variety of retail devices without the need for a traditional set-top box," he said in a statement. "These exciting developments show how technology and television are enriching the consumer experience while protecting copyright, consumer privacy and other important elements that make America the world’s entertainment leader. Instead of rushing forward with a regulatory proceeding that will upset a marketplace that is undergoing such a dramatic transformation and achieving the goals that it seeks, the FCC should study these developments and reconsider the path it appears to be on."

The FCC, or at least the three Democrats, voted to propose "unlocking" set-tops, and the President last week added his voice to the choir.

"If the FCC’s set-top box proceeding is truly just about freeing consumers from monthly box fees, today’s announcement underscores how absurd the arguments for government intervention are," said the Future of TV Coalition, which was launched by cable and other ISPs to fight the set-top proposal. "Apps, not federal box mandates, are the fastest and most effective way to expand consumers’ options for video devices.

“While we do not know all of the details of this announcement," said an FCC official who spoke not for attribution, "it appears to offer only a proprietary, Comcast-controlled user interface and seems to allow only Comcast content on different devices, rather than allowing those devices to integrate or search across Comcast content as well as other content consumers subscribe to.”

Facing the specter of new FCC rules aimed at “unlocking” the set-top box, Comcast launched a partner program Wednesday that will enable partners, including Samsung and Roku, to offer the MSO’s full suite of video services, including live, VOD and cloud DVR, to the home via retail video devices.

An FAQ about the new program sheds light on some of the requirements potential partners must live up to if they want to offer the Xfinity TV on their respective retail platforms.  

In it, Comcast notes that program partners won’t be charged to register or participate in it, but that they “bear their own expenses for any development, marketing, and operations associated with integration of the Xfinity TV Partner app on their device.”

Regarding technical requirements for app partners, Comcast outlines some of them, including compliance with HTML5 standards, Media Source Extensions (MSE), and Encrypted Media Extensions (EME) with the Adobe Access CDM (Content Decryption Module) and/or Microsoft PlayReady CDM, and Web Cryptography API

Because the app replicates the elements of Comcast’s pay TV service, participating devices must also enable their  Xfinity TV Partner app to comply with “all applicable regulatory requirements for cable service,” including Emergency Alert System, closed captioning, and must also support requirements set out in Comcast’s programmer deals spanning copy restrictions, geographic restrictions, and content branding.

Multichannel News has asked other companies such as TiVo, Google and Apple if they intend to join the new Xfinity TV Partner Program. 

TiVo, the first to respond, offered this statement: “We don’t have anything in the works with them on this program at the moment, but we’re always open to discussions.”

However, app partners will be using Comcast’s UI, which could make the program less attractive to TiVo, which would prefer to use its interface. Per the program’s FAQ: “Customers will discover and navigate content via Xfinity TV’s award winning user interface.” 

Get complete coverage of the FCC's set-top proposal.

WASHINGTON — Black Entertainment Television founder Bob Johnson and TV One Chairman Alfred Liggins — both highly successful African-American media entrepreneurs — are on opposite sides of the debate over the impact of the Federal Communications Commission's set-top proposal on diverse programming, and the gloves are off.

In a press conference Tuesday about the proposal, Liggins, who has issues with it, said Johnson's support was because he owns Urban Movie Channel, a streaming service that would benefit from the regime, while traditional African American- and Hispanic-targeted networks including TV One, Revolt and El Rey Network could see their business model hurt if the FCC allows their content to be repackaged and monetized by third party devices, like Google's proposed box.

"To the extent that [third parties like Google] are allowed to disrupt the current programmer-cable-satellite distributor relationship and get hold of that content, and sell ads around it as well, it will significantly devalue our ability to monetize it and therefore limit our ability to produce high-quality programming that we fought long and hard to deliver to our customers."

Noting Johnson's support for the set-top proposal, Liggins said he was aware that "a friend of mine, Bob Johnson, who has a video-streaming service, is on the opposite end of this." He pointed out that Johnson, whose RLJ Entertainment launched the Urban Movie Channel streaming service in 2014, was a cable entrepreneur first and was highly successful, having sold BET to Viacom in 2000 for $3 billion.

"No, he has a new venture where he has bought a library of content and created a streaming service out of that library," which Liggins said was primarily older content, not something he was spending tens of millions of dollars to produce.

Liggins said it was great that Johnson was on those other OTT platforms and wanted to better monetize his content. But the model for the streaming business should not be "let's aggregate a TV One content, put mine next to it so I draft off their audience and then the guys who help me do that — Google — get to sell ads around it," he said.

He said Johnson should not upend TV One, Magic Johnson’s Aspire, director Robert Rodriguez’s El Rey or rapper P. Diddy's Revolt, “or any of these other networks that sell license fees and have control of the data of our own viewership, it does not provide more quality programming for the consumer. It may help him, but it hurts more people, including more consumers, than it helps."

Johnson, now chairman of RLJ Entertainment, responded, saying it was not the FCC's job to protect a handful of established networks.

"As the founder of Black Entertainment Television (BET), I know how difficult it was to get distribution over cable,” Johnson said in a statement. “But with the support of the cable industry and the African American community, I and others, turned BET into the success it is today.”

"The universal set-top box, unlike the leased cable box, opens up the unfettered opportunity for hundreds of minority programming aspirants who would like to create content success of their own, similar to what I enjoyed with BET,” Johnson added. “ With all due respect to my good friends [Liggins] and Michael Powell,  CEO of the National Cable and Telecommunications Association (NCTA), it is not the Federal Communications Commission's (FCC) role or obligation to force black Americans who have a median net worth of $13,000 to spend an average of $231 a year to lease a cable box so TV One and the cable industry can make billions of dollars off of working-class black Americans, to only have access to four black-oriented channels out of over 500 choices that principally show network reruns.” (Powell, a former FCC chairman under Republican President George W. Bush, stated his case against the rules alongside Liggins during the Tuesday conference call.)

"Furthermore, there is nothing in the FCC's proposed rulemaking that would allow technology companies to infringe on TV One's advertising revenue and relationships. On the other hand, my company, RLJ Entertainment, is well on the way to proving that programmers do not have to be totally dependent on advertising models.

"RLJE operates two over-the-top (OTT) subscription streaming channels, both of which depend on direct subscriber revenue. Acorn TV, which produces countless hours of original British mysteries and dramas, and UMC - Urban Movie Channel, through its parent company RLJ Entertainment, acquires more minority and independent films than any minority programmer on cable. And by the way, we have licensed content to both TV One and BET.

"UMC, as a minority targeted program channel, is a perfect example of the opportunity that hundreds of other minority programmers will have when the universal set-top box is implemented and their content is given equal access to the subscriber on any viewing device, particularly the television set,” Johnson continued. “Finally, the FCC should not protect minority incumbents, but should encourage new minority entrants, and that is what the universal set-top box does."