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Public Knowledge: FCC Poised To Grant MPAA Waiver Request

The FCC's media bureau is poised to grant the Motion Picture Association of America a waiver of the selectable output controls on set-top boxes, according to a collection of public interest groups.

But that came as news to one FCC source familiar with the item. "No decision has been made," said the source, though that does not mean it could not eventually come down the way the groups fear.

In June 2008, the Motion Pictures Association of America asked the FCC to waive its prohibition on selectable output controls to allow them to selectively block the copying of HD movies via cable set-top boxes. They say in order to move up the multichannel video HD window while still protecting the DVD window, they need to be able to prevent their being copied.

Faced with that prospect, the groups, which include Public Knowledge, Media Access Project and Consumer Federation of America, sent a letter to the FCC warning it not to respond to the "whims of industry" by granting a waiver that would result in substantial harm to consumers by blocking outputs to TiVo's or Sling Boxes.

They argue that MPAA has not offered up "a shred of relevant data in the record to support its claim that the ability to turn off video outputs on common consumer electronics could be used to effectively combat piracy."

Representatives of the MPAA met with FCC staffers in late summer to urge them to grant the waiver, saying it would "enable millions of Americans to obtain access in their homes to high-value content that MPAA member studios intend to distribute."

One of MPAA's initial arguments was that the waiver could help speed the DTV transition by increasing the demand for HDTV, but the FCC has already missed that boat.

The National Cable & Telecommunications Association, which supported the FCC ban on selectable output controls, also supports the waiver.

In its own filing with the FCC, MPAA countered that Public Knowledge's argument would mean that "no consumer-oriented technological breakthrough ever could be introduced to American homes unless and until every single American home had access to the same opportunity at the same moment in time."

MPAA likened that to "holding every innovation hostage until the last consumer adopts a new technology."

Jean Prewitt, president of the Independent Film & Television Alliance, which filed in opposition to the waiver a year ago, said nothing in the interim has changed their mind.

"There is absolutely no evidence put on the record that would suggest why this waiver is in anyone's best interest, much less why it should be permanent.

She said the waiver would give cable companies unlimited rights to shut off various outputs, but no commitment to how much content the studios would make available. "There is this funny imbalance of 'maybe we would like to do this, so give the cable companies this extraordinary power, but nothing that ever insured or gave the FCC the right to look back and see if any consumer benefit was delivered. We are still really troubled by that piece of it."

She said this could be a way of creating "another little rarified channel of distribution" only available to a few companies. She said that concern is only heightened by a looming Comcast/NBC meld.