The National Cable Telecommunications Association and Charter Communications joined Comcast in arguing that FCC Chairman Tom Wheeler’s proposed set-top box rules will exceed the Commission’s authority.

RELATED: FCC’s Magical Number: 5 Million

The NCTA took it a step further by holding that the rules should eliminate the FCC’s proposed role in the licensing process.

Here’s Charter’s statement:

“Enabling consumers to use apps instead of set-top boxes may be a valid goal, but the marketplace is already delivering on the goal without overreaching government intervention.  The FCC’s mandate threatens to bog down with regulations and bureaucracy the entire TV app market that consumers are increasingly looking to for innovation, choice and competition.”

And the NCTA’s:

“Notwithstanding the rhetorical flourishes in the public materials used to describe the Chairman’s latest set-top proposal, there are some important details being left out.  According to several public sources, the Commission will play a much more significant role in the licensing process than simply the ‘backstop’ as it was described today. 

That is, the Chairman isn’t just proposing a ‘standard license’ but a centralized licensing organization that would exist in perpetuity.  The work of this licensing body would be subject to intrusive FCC oversight, creating a bureaucratic morass and improperly involving the FCC in private licensing arrangements in a way that will slow the deployment of video apps, ignore copyright protections and infringe on consumer privacy. 

This proposal would far exceed the Commission’s legal authority and improperly insert the government into private contract negotiations between pay TV distributors, content creators and device manufacturers.  

 Perhaps that’s why it’s not on the Fact Sheet.  This element of the Chairman’s proposal must be eliminated or drastically altered if the Commission hopes to have a sound app-based plan that truly benefits consumers while protecting the critical rights of content creators.”

FCC Chairman Tom Wheeler’s proposed set-top rules  require that MVPDs create and provide apps  for all “widely deployed” retail platforms.

Though a fact sheet for the proposal is rather vague about that, calling out Roku, iOS, Windows and Android as examples, FCC officials have shed more light on that definition as any operating system that has had shipments in the U.S. of at least 5 million devices during the previous year (and not historical shipments).

If a platform meets or exceeds that threshold, MVPDs must write an app for it. By way of example, Roku’s “platform” includes both Roku players as well as integrated Roku TVs. Apple TV is tossed in with any iOS device as viewed through the FCC’s lens, so it easily passes the threshold.  

READ MORE:Why TV Is Going to the Apps: How cable operators are transforming the TV experience one screen at a time. 

A new device on the market could also make the grade if, for example, it’s built on Android or another platform that has already met the shipment requirement.

And platforms are good to go once they meet the U.S. shipment bar. They don't have to meet it year in and year out. Once they're in...they're in. 

There are also other paths to take for device makers that don’t hit the number. FCC officials said they also have the option to forge a business deal with an MVPD to gain access to their app.

One possible example there is Comcast’s “Xfinity TV Partner Program.” Samsung is the first TV maker to join. Comcast and Roku have also forged an agreement.

At the INTX show in May, Comcast demoed its app running on the Android TV-powered Nvidia Shield but stressed then that no formal business deal had been reached for that particular platform. 

In April, Comcast Cable CEO Neil  Smit said more than 40 companies had inquired about the program since its introduction in April 2016.

FCC Chairman Tom Wheeler’s proposed set-top box rules seemingly follow an apps-based approach that's been preferred by cable operators and other traditional MVPDs, but that doesn’t mean Comcast is happy about it, either. 

The MSO held that the rules would impose an “overly complicated government licensing regime,” have the reverse effect on the thriving apps-based market, and exceed the FCC’s authority.

Here’s the full statement from Comcast:

“While we appreciate that Chairman Wheeler has abandoned his discredited proposal to break apart cable and satellite services, his latest tortured approach is equally flawed.  He claims that his new proposal builds on the marketplace success of apps, but in reality, it would stop the apps revolution dead in its tracks by imposing an overly complicated government licensing regime and heavy-handed regulation in a fast-moving technological space. 

The Chairman’s new proposal also violates the Communications Act and exceeds the FCC’s authority.  It perpetuates many of the concerns that led hundreds of Members of Congress, content creators, diversity and civil rights organizations, labor unions, and over 300,000 individuals to object to his original flawed approach, including problems with privacy, copyright protection, content security, and innovation.  Heavy-handed government technology mandates have a long history of failure.  The Chairman’s approach would likely meet the same fate, while causing real damage to the thriving apps marketplace and real harm to consumers.”

The FCC is trying to spur separate competition to cable-leased set-tops in the delivery of video programming, but according to one federal court, the two are inseparable.

A panel of the U.S. Court of Appeals for the Second Circuit has upheld a lower court decision dismissing a class action suit against Time Warner Cable (now part of Charter Communications) for allegedly tying premium cable services to leasing cable boxes, finding that for the purposes of antitrust law, at least, cable boxes and the premium cable service they transmit are not separate products so can't be anticompetitively tied.

"A cable box must be cable-provider-specific, like the keys to a padlock," the court found. "Although the plaintiffs frame their claim as a tie-in, the core issue is a cable provider's right to refuse to enable cable boces it doesn not control to unscramble its coded signal."

The decision was handed down Friday.

A group of subs had alleged antitrust violations, but a district court judge dismissed two different iterations of the suit, after which the complainants appealed.

A three-judge panel of the court--Judges Denny Chin and Ralph Winter supporting, Judge Christopher Droney dissenting --concluded that the complaint failed to come up with facts adequate to prove, if established, "that 1) the set-top cable boxes and the premium programming they transmit are separate products for the purposes of antitrust law, and that 2) Time Warner possesses sufficient market power in the relevant markets to establish and illegal tie-in."

The majority judges also point to the FCC rule capping the price of leased set-tops, saying: "We doubt that Time Warner would attempt to monopolize the market for bi-directional cable boxes when an FCC regulation caps the amount of profits that Time Warner may reap from that market."

The court also said the FCC's inability to create a competitive market also argues against the tying claim.

In his dissent, Droney said the complainants had produced evidence that "plausibly alleges a separate product market for consumer-purchased cable boxes, which is suppressed by Time Warner's anticompetitive conduct." He said concluding otherwise "imposes too high a bar on plaintiffs."

For most Americans, television is in a new “golden age.”

We have more diverse choices — and a richer menu of sports, news, education and entertainment available than ever. There’s more direct streaming from the likes of HBO and Netflix, more services like Apple TV and Amazon Fire, and more innovative devices from Roku boxes to wall-size smart TVs with cross-platform search.

We are in the midst of a revolution — one that is allowing television and video to serve the multicultural world that is the America we celebrate. And it has birthed new and diverse voices like my network, Crossings TV, which offers hyper-local programming in six different languages in markets throughout the United States, serving communities that are too often shut out or overlooked.

Yet worrisome new federal regulations proposed by Federal Communications Commission chairman Tom Wheeler, with the support of large technology companies such as Google, have thrown a dark cloud over this revolution — one that could deprive many communities of the tailored, in-language program options we have worked so hard to provide.

Big Tech ‘Poachers’

Under the FCC’s proposed new rules (known commonly as “AllVid” after an earlier industry lobbying eff ort the Obama administration rejected in 2010), big technology companies such as Google would be given the right to poach the program license deals we negotiate with pay TV providers like DirecTV or Time Warner Cable without being bound to the underlying license terms that help fund our networks and ensure they get enough exposure to thrive.

The FCC chairman says the rule is intended to create competition for set-top box devices. He argues that exempting these companies from the obligation to negotiate for rights will enable them to focus on developing new boxes to repackage your existing programming and place it alongside the more underfunded Internet video in a single “cross -platform” search.

It’s an odd argument on behalf of competition — asking the federal government to subsidize the most wealthy companies so that they can bring more search and advertising services into our living rooms and require yet another in-home box.

Leaving aside that the rationale for this giveaway to Big Tech is totally undermined by the fact that smart TVs and other home gateways already provide cross-platform search, there is an even more compelling reason to oppose the AllVid mandate: It will likely bring us less diversity, not more, in television’s golden age.

Today, small and niche networks like mine can negotiate for channel placement they think will help them be seen by their target audience and can cross-promote with other networks to gain exposure from potential fans.

Crossings TV has grown because it has been able to create meaningful local programming in partnership with locally based multichannel distributors — builders of infrastructure and creators of jobs who are physically on the ground in the communities we serve.

But the Wheeler “AllVid” rule directly attacks that crucial system and allows tech firms to disregard negotiated terms such as channel placement, digital rights and much else.

At the Box’s Mercy

Further, the cross-search function leaves our channels all at the mercy of the new box’s often-mysterious algorithms — notorious for burying disfavored and smaller companies in its ash heap. The dedicated viewers who value networks like Crossings TV have no currency with Google, its fellow Silicon Valley technology inhabitants or profit-maximizing cross-platform search algorithms. Certainly many have observed that the Google workforce looks nothing like the diverse communities it purports to serve. For programmers like Crossings, these giant new boxes could mean a one way ticket to the back of the bus.

While working to create an African-American focused search browser through Blackbirdhome.com, I saw this problem up close when the Google search algorithm consistently buried African-American-generated content on the lowest rung of search results. Extrapolating that experience to a world of television that is subservient to a Google universal search master box promises a continued outlier existence for African- Americans and Asians, as well as other minorities.

AllVid will further strip-mine our value and harm viewers by serving up new banner ads (for which creators will get no compensation), ignoring privacy protections for your personal television viewing habits, and driving up bills with the massive re-engineering needed to accommodate these privileged devices.

The FCC should step back. Promoting competition is a goal we all share, but the government putting a thumb on the scale in favor of technology giants so that they can sell more ads, track our viewing habits and bury diversity programming — all in the name of competition that already exists — hardly seems to be part of the progressive legacy this FCC should leave.

Frank Washington is the CEO of Crossings TV, an award-winning, small, independent provider of Asian-language programming, information and entertainment. He conceived of the Minority Ownership Tax Certificate while a consultant in President Jimmy Carter’s administration and has served as the legal assistant to former FCC chairman Charles Ferris.

Washington — Federal Communications Commission chairman Tom Wheeler stopped short of saying he would press the pause button on his proposal to “unlock” cable set-top boxes, but he has signaled he would work with members of the committee on their issues with the proposal.

And they did have issues.

The key to that exchange — which took place at an FCC oversight hearing on Capitol Hill — was that it was with a Democratic legislator who was asking for the delay, and that lawmaker wasn’t alone.

Last week, the National Urban League joined the Rev. Al Sharpton’s National Action Network, the Rev. Jesse Jackson’s Rainbow PUSH Coalition and others in calling on the FCC to delay any action on the set-top proposal until it had studied the impact of the proposal on diverse programmers.

Rep. Yvette Clarke (D-N.Y.) said at the hearing that she has asked the Congressional Research Service to conduct such a study, and asked Wheeler if he would be willing to hold off until the study was completed.

Wheeler did not commit to a delay, saying only that he would “look forward to working with [Clarke] and the committee” on any issues raised. He did not say he would delay the proceeding, and he said he did not know how long a delay was contemplated.

As expected, committee Republicans hammered Wheeler over the proposal, saying it threatened copyright protections and privacy and was unnecessary and rooted in old technology and thinking. That pushback has now become bipartisan.

Also at the hearing, Rep. G.K. Butterfield (D-N.C.) went so far as to suggest that he joined some stakeholders in concerns that the proposal could mean a new form of digital redlining.

Butterfield said he was concerned about the potential for the “myriad unintended consequences” of the proposal, including the ability to enforce copyright protections for content creators and distributors.

Wheeler continued to assert last week that the proposal doesn’t threaten copyright holders. In providing an example, though, he also provided fodder for cable ISPs and other opponents.

In talking about his proposal and how it would not allow those third parties to ride roughshod over copyright protections, Wheeler said there are “today the equivalent of competitive set-top boxes available in the market,” citing Google’s Chromecast device. Wheeler said that Chromecast does not violate copyright, does not “overlay commercials” and is not out to take over cable TV, calling that notion “malarkey.”

The Future of TV Coalition, which includes cable ISPs and others opposing the set-top proposal, was quick to pick up that comment and run with it, saying it showed there are already alternatives in the market and that makes the set-top proposal unnecessary.

“If the classic Washington definition of a ‘gaffe’ is to accidentally tell the truth, Chairman Wheeler’s comments at today’s hearing are a whopper,” the coalition said in a statement. “He admitted, plainly and clearly, that apppowered devices like Chromecast and Roku offer consumers an alternative to traditional set-top boxes and are readily available in the marketplace. Which begs the question — why is the chairman so desperate to solve a problem that he admits does not exist?

“Chairman Wheeler correctly points out that apps-driven innovation is already allowing consumers to watch video on a wide range of devices — without hurting small and independent programmers, invading privacy, or undermining copyright protections. Why, then, is he proposing a sweeping mandate that explicitly rejects this apps approach and strips TV providers of the technical and contractual tools they currently use to ensure these protections remain in place?”

In response, FCC press secretary Kim Hart told Multichannel News: “What the coalition fails to acknowledge is that 99% of pay TV consumers rent a box from their pay TV provider, paying $231 a year on average. The marketplace is not providing consumers with choice.

“While Roku and Chromecast may provide ‘equivalent’ functions to a set-top box, today these devices and consumers that use them remain bound by the whims of the pay TV industry,” Hart added. “Pay TV providers choose which device to make an app for and independent app providers cannot develop an app to display this video programming. For instance, no MVPD provides an app to Chromecast.”