The National Cable & Telecommunications Association has come out swinging against TiVo's effort to reinstate cable regs it says are unnecessary vestiges of the FCC's 2003 Plug and Play Order, which was vacated by the U.S. Court of Appeals for the D.C. Circuit earlier this year in the EchoStar case.
"[T]he Commission should reject the Petition and decline to open a rulemaking proceeding to reinstate those regulations," said NCTA. And if the FCC does try to reinstate them, said NCTA, they should come with an expiration date.
Among the rules TiVo wants reinstated are limits on the levels of copy protection for MVPD-distributed content, but only for cable operators. NCTA said if the FCC does impose new regs, it should do so on all MVPDS, but its first choice is no new regs. "[R]egulations that impose inflexible technical specifications like the plug-and-play rules cannot adjust promptly to changes in the market and technology and inherently lack the agility called for by innovative markets such as the video service and video device markets that exists today."
CBS and NCTA member Time Warner Cable may be at each other's throats over retransmission consent, they have each other's backs in this proceeding. In a separate filing, programmers including CBS, Viacom, 21st Century Fox, Disney, and Time Warner, backed NCTA, saying they agreed that the FCC did not need to take action, and if it did should not apply them only to cable.
Back in July, TiVo petitioned the FCC to guarantee that cable customers can continue to use retail set-top boxes with CableCARDs. That followed the court decision in which EchoStar won its challenge to FCC rules on the ability to record TV programming. The issue was not CableCARDs, but it raised questions about cable obligations to support consumer access to the cards, said TiVo, which it wants the FCC to clear up since those CableCARDs also allow access to TiVo recording devices.
NCTA said cable operators are still required to separate out the security and surfing functions. "Cable operators already have a duty under the navigation device rules to support separate security for retail devices," it told the FCC. "Nothing about the EchoStar decision changes anything about the cable industry's obligations in this regard."
But TiVo saw it differently. "[C]ertain technical rules concerning the implementation of CableCARDs [conditional access rules] were contained in the same FCC order that the court struck down despite the fact that operator support for retail devices using CableCARDs was not the subject of the court challenge," said TiVo.
In 2007, the FCC instituted the prohibition on set-tops that combine channel surfing with security. Cable ops were required to use a removable CableCARD security add-on, a move the FCC hoped would goose the retail market, though it conceded at the time that a downloadable software security option would be preferable to the hardware in the long run. It has since conceded that the ban has not spurred that retail market.
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