Expanding Consumers' Video Navigation Choices; Commercial Availability of Navigation Devices, 14033-14052 [2016-05763]
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Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Proposed Rules
weight (in amu) of 5,500 (CAS Reg. No.
9010–77–9) when used as an inert
ingredient in pesticide formulations
under 40 CFR 180.960. The petitioner
believes no analytical method is needed
because it is not required for an
exemption from the requirement of a
tolerance. Contact: RD.
Authority: 21 U.S.C. 346a.
Dated: March 10, 2016.
Daniel J. Rosenblatt,
Acting Director, Registration Division, Office
of Pesticide Programs.
[FR Doc. 2016–05952 Filed 3–15–16; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 76
[MB Docket No. 16–42; CS Docket No. 97–
80; FCC 16–18]
Expanding Consumers’ Video
Navigation Choices; Commercial
Availability of Navigation Devices
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, we propose
new rules to empower consumers to
choose how they wish to access the
multichannel video programming to
which they subscribe, and promote
innovation in the display, selection, and
use of this programming and of other
video programming available to
consumers. We take steps to fulfill our
obligation under section 629 of the
Communications Act to assure a
commercial market for devices that can
access multichannel video programming
and other services offered over
multichannel video programming
systems. We propose rules intended to
allow consumer electronics
manufacturers, innovators, and other
developers to build devices or software
solutions that can navigate the universe
of multichannel video programming
with a competitive user interface. We
also seek comment on outstanding
issues related to our CableCARD rules.
DATES: Submit comments on or before
April 15, 2016. Submit reply comments
on or before May 16, 2016. Written
comments on the Paperwork Reduction
Act proposed information collection
requirements must be submitted by the
public, Office of Management and
Budget (OMB), and other interested
parties on or before May 16, 2016.
ADDRESSES: In addition to filing
comments with the Secretary, a copy of
any comments on the Paperwork
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SUMMARY:
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Reduction Act (PRA) information
collection requirements contained
herein should be submitted to the
Federal Communications Commission
via email to PRA@fcc.gov and to
Nicholas A. Fraser, Office of
Management and Budget, via email to
Nicholas_A._Fraser@omb.eop.gov or via
fax at 202–395–5167.
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding, contact Brendan Murray,
Brendan.Murray@fcc.gov, of the Media
Bureau, Policy Division, (202) 418–
1573. Contact Cathy Williams,
Cathy.Williams@fcc.gov, (202) 418–2918
concerning PRA matters.
SUPPLEMENTARY INFORMATION: Congress
adopted section 629 of the
Communications Act in 1996, and since
then each era of technology has brought
unique challenges to achieving Section
629’s goals. When Congress first
directed the Commission to adopt
regulations to assure a commercial
market for devices that can access
multichannel video programming, the
manner in which MVPDs offered their
services made it difficult to achieve the
statutory purpose. Cable operators used
widely varying security technologies,
and the best standard available to the
Commission was the hardware-based
CableCARD standard—which the cable
and consumer electronics industries
jointly developed—that worked only
with one-way cable services. In 2010,
the Commission sought comment on a
new approach that would work with
two-way services, but still only a
hardware solution would work because
software-based security was not
sophisticated enough to meet content
companies’ content protection demands.
This concept, called ‘‘AllVid,’’ would
have allowed electronics manufacturers
to offer retail devices that could access
multichannel video programming, but
would have required all operators to put
a new device in the home between the
network and the retail or leased set-top
box. Now, as MVPDs move to Internet
Protocol (‘‘IP’’) to deliver their services
and to move content throughout the
home, those difficulties are gone. Today,
MVPDs provide ‘‘control channel’’ data
that contains (1) the channels and
programs they carry, (2) whether a
consumer has the right to access each of
those channels and programs, and (3)
the usage rights that a consumer has
with respect to those channels and
programs. Many MVPDs already use
Internet Protocol (‘‘IP’’) to provide this
control channel data. Moreover, most
MVPDs have coalesced around a few
standards and specifications for delivery
of the video content itself, and many
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have progressed to sending content
throughout the home network via IP.
This standardization and increasing
reliance on IP allows for software
solutions that, with ground rules to
ensure a necessary degree of
convergence, will make it easier to
finally fulfill the purpose of Section
629.
The regulatory and technological path
to this proceeding reflects a long
history. It begins with the
Telecommunications Act of 1996, when
Congress added Section 629 to the
Communications Act. Section 629
directs the Commission to adopt
regulations to assure the commercial
availability of devices that consumers
use to access multichannel video
programming and other services offered
over multichannel video programming
networks. Section 629 goes on to state
that these devices should be available
from ‘‘manufacturers, retailers, and
other vendors not affiliated with any
multichannel video programming
distributor.’’ It also prohibits the
Commission from adopting regulations
that would ‘‘jeopardize security of
multichannel video programming and
other services offered over multichannel
video programming systems, or impede
the legal rights of a provider of such
services to prevent theft of service.’’ In
enacting the section, Congress pointed
to the vigorous retail market for
customer premises equipment used with
the telephone network and sought to
create a similarly vigorous market for
devices used with services offered over
MVPDs’ networks.
The Commission first adopted rules to
implement Section 629 in 1998, just as
‘‘the enormous technological change
resulting from the movement from
analog to digital communications [was]
underway.’’ The Commission set
fundamental ground rules for consumerowned devices and access to services
offered over multichannel video
programming systems. The rules
established (1) manufacturers’ right to
build, and consumers’ right to attach,
any non-harmful device to an MVPD
network, (2) a requirement that MVPDs
provide technical interface information
so manufacturers, retailers, and
subscribers could determine device
compatibility, (3) a requirement that
MVPDs make available a separate
security element that would allow a settop box built by an unaffiliated
manufacturer to access encrypted
multichannel video programming
without jeopardizing security of
programming or impeding the legal
rights of MVPDs to prevent theft of
service, and (4) the integration ban,
which required MVPDs to commonly
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rely on the separated security in the
devices that they lease to subscribers.
The Commission did not initially
impose a specific technical standard to
achieve these rules, but instead adopted
rules that relied ‘‘heavily on the
representations of the various interests
involved that they will agree on relevant
specifications, interfaces, and standards
in a timely fashion.’’
In December 2002, the cable and
consumer electronics industries adopted
a Memorandum of Understanding
regarding a one-way plug-and-play
‘‘CableCARD’’ compatibility standard
for digital cable. In October 2003, the
Commission adopted the CableCARD
standard as part of the Commission’s
rules, and consumer electronics
manufacturers brought unidirectional
CableCARD-compatible devices to
market less than a year later. At least six
million (and by one report, over 15
million) CableCARD devices were built
and shipped, but the nine largest
incumbent cable operators have
deployed only 618,000 CableCARDs for
use in consumer-owned devices. These
rules drove innovations that consumers
value greatly today: High-definition
digital video recording, competitive user
interfaces that provided more program
information to viewers, the ability to set
recordings remotely, the incorporation
of Internet content with cable content,
and automatic commercial skipping on
cable content. Throughout the mid-tolate 2000s, cable operators increasingly
transitioned their systems to digital and
introduced interactive video services
such as video-on-demand and content
delivery methods such as switched
digital video. The Commission’s
CableCARD rules and the Memorandum
of Understanding did not prescribe
methods for retail devices to access
those interactive services, and therefore
retail CableCARD devices could not
access cable video-on-demand services.
Moreover, cable operators generally
offered poor CableCARD support, which
made it much more difficult for
consumers to set up a retail device than
a leased device.
In 2010, the Commission took steps to
remedy problems with the CableCARD
regime. The Commission adopted
additional CableCARD-related rules to
improve cable operator support for retail
CableCARD devices. The Commission
also sought comment on a successor
technology in the form of a
Commission-designed, standardized
converter box that would be designed to
allow ‘‘any electronics manufacturer to
offer smart video devices at retail that
can be used with the services of any
MVPD and without the need to
coordinate or negotiate with MVPDs.’’
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The Commission sought comment on
this AllVid concept in a Notice of
Inquiry but ultimately decided not to
propose rules to mandate it.
In late 2014, Congress passed
STELAR. Section 106 of that law had
two main purposes: First, it eliminated
the integration ban as of December 4,
2015, and second, it directed the
Chairman of the Commission to appoint
an advisory committee of technical
experts to recommend a system for
downloadable security that could
advance the goals of section 629. The
Chairman appointed 19 members to the
Downloadable Security Technical
Advisory Committee (‘‘DSTAC’’), and
the committee submitted its report to
the Commission on August 28, 2015.
The DSTAC Report gave an account of
the increasing number of devices on
which consumers are viewing video
content, including laptops, tablets,
phones, and other ‘‘smart,’’ Internetconnected devices. The DSTAC Report
pointed to two main reasons for this
shift: (1) Software-based applications
have made it easier for content
providers to tailor their services to run
on different hardware, and (2) there are
an increasing number of software-based
content protection systems that
copyright holders are comfortable
relying on to protect their content. The
Media Bureau released a Public Notice
seeking comment on the DSTAC Report
on August 30, 2015. The DSTAC Report
and comments that we received in
response to it underlie and inform our
Notice of Proposed Rulemaking.
The DSTAC Report offered two
proposals regarding the non-security
elements and two proposals regarding
the security elements of a system that
could implement section 629. For the
non-security elements, the DSTAC
Report presented both an MVPDsupported proposal that is based on
proprietary applications and would
allow MVPDs to retain control of the
consumer experience, and a consumer
electronics-supported proposal that is
based on standard protocols that would
let a competing device or application
offer a consumer experience other than
the one the MVPD offers. With respect
to security, the DSTAC Report presented
both an MVPD-supported proposal
based on digital rights management
(similar to what Internet-based video
services use to protect their video
content), and a consumer electronicssupported proposal based on link
protection (similar to how content is
protected as it travels from a Blu-ray
player to a television set).
In this Notice of Proposed
Rulemaking, we propose rules that are
intended to assure a competitive market
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for equipment, including software, that
can access multichannel video
programming. A recent news report on
this topic summarized the issue
succinctly: ‘‘some consumer advocates
wonder why, if you do want a set-top
box, you can’t just buy one as easily as
you’d buy a cell phone or TV for that
matter.’’ Before MVPDs transitioned to
digital service, it was easy for
consumers to buy televisions that
received cable service without the need
for a set-top box. In 1996, Congress
recognized that we were on the cusp of
a digital world with diverging system
architectures. To address this, Congress
adopted Section 629, and the
Commission implemented that section
of the statute by separating the parts of
cable system architectures that were not
consistent among systems into a module
called a CableCARD that cable operators
could design to work with their systemspecific technology. This module
converted system-specific aspects into a
standardized interface; this
standardized interface allowed a
manufacturer to build a single device
that could work with cable systems
nationwide, despite their divergent
technologies. Today, the world is
converging again, this time around IP to
provide control channel data, in some
cases also using IP for content delivery
over MVPD systems, and in many cases
using IP for content delivery throughout
the home. Standards will allow us to
develop, and MVPDs to follow, ground
rules about compatibility that are
technology-neutral: The rules will allow
MVPDs to upgrade their networks freely
and any changes that a navigation
device needs to conform to those
changes can be supplied via software
download rather than upgrading
consumers’ hardware. The ground rules
we propose in this Notice of Proposed
Rulemaking are designed to let MVPD
subscribers watch what they pay for
wherever they want, however they
want, and whenever they want, and pay
less money to do so, making it as easy
to buy an innovative means of accessing
multichannel video programming (such
as an app, smart TV, or set-top box) as
it is to buy a cell phone or TV.
As discussed below, our proposed
rules are based on three fundamental
points. First, the market for navigation
devices is not competitive. Second, the
few successes that developed in the
CableCARD regime demonstrate that
competitive navigation—that is,
competition in the user interface and
complementary features—is essential to
achieve the goals of Section 629. Third,
entities that build competitive
navigation devices, including
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applications, need to be able to build
those devices without seeking
permission from MVPDs, because
MVPDs offer products that directly
compete with navigation devices and
therefore have an incentive to withhold
permission or constrain innovation,
which would frustrate Section 629’s
goal of assuring a commercial market for
navigation devices.
The Need for Rules. Today,
consumers have few alternatives to
leasing set-top boxes from their MVPDs,
and the vast majority of MVPD
subscribers lease boxes from their
MVPD. In July 2015, Senators Ed
Markey and Richard Blumenthal
reported statistics that they gathered
from a survey of large MVPDs:
‘‘approximately 99 percent of customers
rent[ ] their set-top box directly from
their pay-TV provider, [and] the set-top
box rental market may be worth more
than $19.5 billion per year, with the
average American household spending
more than $231 per year on set-top box
rental fees.’’ There is evidence that
increasingly consumers are able to
access video service through proprietary
MVPD applications as well. According
to NCTA, consumers have downloaded
MVPD Android and iOS applications
more than 56 million times, more than
460 million IP-enabled devices support
one or more MVPD applications, and 66
percent of them support applications
from all of the top-10 MVPDs. These
statistics show, however, that almost all
consumers have one source for access to
the multichannel video programming to
which they subscribe: The leased set-top
box, or the MVPD-provided application.
Therefore, we tentatively conclude that
the market for navigation devices is not
competitive, and that we should adopt
new regulations to further Section 629.
We invite comment on this tentative
conclusion.
Certain MVPD commenters argue that
the market for devices is competitive
and that we need not adopt any new
regulations to achieve Section 629’s
directive. They argue that the popularity
of streaming devices such as Amazon
Fire TV, AppleTV, Chromecast, Roku,
assorted video game systems, and
mobile devices that can access over-thetop services such as Netflix, Amazon
Instant Streaming, and Hulu, shows that
Congress’s goals in section 629 have
been met. We disagree. With certain
limited exceptions, it appears that those
devices are not ‘‘used by consumers to
access multichannel video
programming,’’ and are even more rarely
used as the sole means of accessing
MVPDs’ programming. We seek
comment on this point. Which MVPDs
allow their subscribers to use these
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devices as their sole means of accessing
multichannel video programming? We
seek specific numbers from MVPDs on
the number of and percentage of their
subscribers who use such devices as
their sole means of accessing
multichannel video programming
without any MVPD-owned equipment
in the subscriber’s home. How do these
numbers compare to other commercial
markets for consumer electronics?
MVPDs may have several incentives
for maintaining control over the user
interface through which consumers
access their multichannel video
programming service, but for the
reasons we provide below, we believe
that the Act requires competitive
navigation that would allow third
parties to develop innovative ways to
access multichannel video
programming. We seek comment on
those incentives. For example, how do
MVPDs profit from their control of the
user interface? Do MVPDs track
consumer viewing habits, and if so, do
they profit in any way as a result of that
tracking (for example, by using the
information to sell advertising or selling
the information to ratings analytics
companies)? What are the profit margins
for selling that data? How long does a
typical consumer lease a MVPD set-top
box before it is replaced? What are
MVPDs’ profit margins on set-top boxes?
Do MVPDs leverage their user interfaces
to sell other services offered over
multichannel video programming
systems, e.g. home security? Do MVPDs
offer integrated search across their
multichannel video programming and
other unaffiliated video services, and if
not why not?
In addition, in today’s world a retail
navigation device developer must
negotiate with MVPDs to get permission
to provide access to the MVPD’s
multichannel video programming, on
the MVPD’s terms. These business-tobusiness arrangements are a step in the
right direction for consumers because
the arrangements have increased the
universe of devices they can use to
receive service. The arrangements have
not assured a competitive retail market
for devices from unaffiliated sources as
required by section 629 because they do
not always provide access to all of the
programming that a subscriber pays to
access, and may limit features like
recording. In other words, these
business-to-business arrangements—
typically in the form of proprietary
apps—do not offer consumers viable
substitutes to a full-featured, leased settop box. Moreover, these relationships
are purely at the discretion of the MVPD
and, to date, have only provided access
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to the MVPD’s user interface rather than
that of the competitive device.
Some argue that these business-tobusiness deals are essential to ensure
that the few independent, diverse
programmers that currently exist can
continue to survive because they ensure
that those programmers can rely on the
channel placement and advertising
agreements that they have contracted for
with the MVPD. We disagree with this
assertion, and believe that competition
in interfaces, menus, search functions,
and improved over-the-top integration
will make it easier for consumers to find
and watch minority and special interest
programming. In addition, our goal is to
preserve the contractual arrangements
between programmers and MVPDs,
while creating additional opportunities
for programmers, who may not have an
arrangement with an MVPD, to reach
consumers. We seek comment on this
analysis.
We also seek specific comment on the
process that an MVPD uses to decide
whether to allow such a device to access
its services. Have retail navigation
device developers asked MVPDs to
develop applications for their devices
and been denied? Have MVPDs asked
navigation device developers to carry
their applications and been denied? Do
programmers prohibit MVPDs from
displaying their programming on certain
devices? If so, what are the terms of
those prohibitions? Should the
Commission ban such terms to assure
the commercial availability of devices
that can access multichannel video
programming, and under what
authority? Are ‘‘premium features and
functions’’ of devices such as televisions
and recording devices limited due to
‘‘cable scrambling, encoding, or
encryption technologies?’’ If so, could
we adopt the rules we propose below
pursuant to our authority under Section
624A of the Act?
As noted above, it appears that
consumers have downloaded
proprietary MVPD applications many
times; we seek comment on whether
consumers actually use those
applications to access multichannel
video programming. Section 629 directs
us to adopt regulations to assure the
commercial availability of ‘‘equipment
used by consumers to access
multichannel video programming.’’
MVPDs argue that their proprietary
applications are used by consumers to
access multichannel video
programming; to better evaluate this
argument, we seek further comment on
usage rates of those proprietary
applications. What percentage of
consumers use MVPD applications to
view programming one month after
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downloading an application? How many
hours per month, on average, does a
consumer use an MVPD application to
view programming, compared to
consumers’ use of leased boxes? How
many MVPDs make their full channel
lineups available via applications? Do
any MVPDs allow consumers to access
multichannel video programming,
beyond unencrypted signals, without
leasing or purchasing some piece of
MVPD equipment? How many
consumers that lease a set-top box also
use an MVPD application? How many
consumers view multichannel video
programming only via a proprietary
MVPD application, without leasing a
box? Are proprietary MVPD
applications available on all platforms
and devices? Or do MVPDs enter into
agreements with a limited number of
manufacturers or operating system
vendors?
Section 629 and DBS Providers. In the
First Plug and Play Report and Order,
the Commission exempted DBS
providers from our foundational
separation of security requirement
because ‘‘customer ownership of
satellite earth stations receivers and
signal decoding equipment has been the
norm in the DBS field.’’ This meant that
DBS was also exempt from most of the
rules that the Commission adopted in
the Second Plug and Play Order.
Unfortunately, in the intervening years
the market did not evolve as we
expected; in fact, from a navigation
device perspective, it appears that the
market for devices that can access DBS
multichannel video programming has
devolved to one that relies almost
exclusively on equipment leased from
the DBS provider. Accordingly, to
implement the requirements of section
629 fully, we tentatively conclude that
any regulations we adopt should apply
to DBS. We seek comment on this
tentative conclusion. We also seek
comment on the availability of DBS
equipment at retail. Has the state of the
marketplace changed since 1998, when
the Commission had observed an
‘‘evolving’’ competitive market for DBS
equipment and, if so, to what extent? In
addition to our authority under section
629, we seek comment on our authority
under section 335 to adopt any of the
rules we propose below or any other
rules related to competition in the
market for devices that can access DBS
multichannel video programming,
which would serve the public interest.
Finally, we recognize the ‘‘weirdness of
satellite’’ that the DSTAC emphasized in
this context because the DBS systems
cannot assume that bidirectional
communication is available in all cases,
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and accordingly we seek comment on
differences in DBS delivery or system
architecture that should inform our
proposed rules set forth below.
Authority. We tentatively conclude
that the Commission has legal authority
to implement our proposed rules.
Section 629 of the Act, entitled
‘‘Competitive Availability of Navigation
Devices,’’ directs the Commission to
‘‘adopt regulations to assure the
commercial availability . . . of
converter boxes, interactive
communications equipment, and other
equipment used by consumers to access
multichannel video programming and
other services offered over multichannel
video programming systems, from
manufacturers, retailers, and other
vendors not affiliated with any
multichannel video programming
distributor.’’ We propose to interpret the
terms ‘‘manufacturers, retailers, and
other vendors’’ broadly to include all
hardware manufacturers, software
developers, application designers,
system integrators, and other such
entities that are not affiliated with any
MVPD and who are involved in the
development of navigation devices or
whose products enable consumers to
access multichannel video programming
over any such device. We believe a
broad interpretation is necessary to
ensure that these third parties are
provided the information they need
from MVPDs to facilitate the
commercial development of competing
navigation technologies in order to
fulfill the goals of section 629.
The Act does not define the terms
‘‘navigation device’’ or ‘‘interactive
communications equipment, and other
equipment,’’ but we believe that
Congress intended the terms to be far
broader than conventional cable boxes
or other hardware alone; Section 629 is
plainly written to cover any equipment
used by consumers to access
multichannel video programming and
other services, and software features
have long been essential elements of
such equipment. Exercising our
authority to interpret ambiguous terms
in the Communications Act, we
tentatively conclude that these terms
include both the hardware and software
(such as applications) employed in such
devices that allow consumers to access
multichannel video programming and
other services offered over multichannel
video programming systems. We believe
this interpretation best serves the intent
of Congress as reflected in the legislative
history, which directs, among other
things, that we ‘‘should take cognizance
of the current state of the marketplace.’’
In today’s marketplace, ‘‘navigation
devices’’—i.e., interactive
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communications equipment and other
equipment—include both hardware and
software technologies. Certain functions
can be performed interchangeably by
either hardware, software, or a
combination of both. Congress
recognized this in the STELAR, which
called for a study of downloadable
software approaches to security issues
previously performed in hardware. To
fully and effectively implement Section
629 as Congress intended, we propose to
interpret these terms to cover both the
hardware and software aspects of
navigation equipment. This is consistent
with our interpretation of other sections
of the Act that use the term
‘‘equipment’’, which we have
interpreted to include both hardware
and software. The Commission derived
its definition of the term ‘‘navigation
devices’’ in our current rules from the
text of section 629, and we propose to
interpret that term consistent with both
the language and intent of the statute, as
described above.
We interpret the phrase
‘‘manufacturers, retailers, and other
vendors not affiliated with any
multichannel video programming
distributor’’ in section 629 to mean
broadly ‘‘entities independent of
MVPDs,’’ such that our rules must
ensure the availability of Navigation
Devices from entities that have no
business relationship with any MVPD
for purposes of providing the three
Information Flows that we discuss
below. We believe that this
interpretation best aligns with
Congressional intent, as reflected in the
legislative history of the
Telecommunications Act of 1996.
Namely, the House Report states that the
statute was intended to encourage the
availability of equipment from a
‘‘variety of sources’’ and ‘‘various
distribution sources’’ to assure that
consumers can buy a variety of nonproprietary devices. Moreover, we do
not believe that the goals of section 629
would be met if the commercial market
consisted solely of Navigation Devices
built by developers with a business-tobusiness relationship with an MVPD,
because such an approach would not
lead to Navigation Device developers
being able to innovate independently of
MVPDs. We seek comment on this
interpretation. Does it take proper
account of the fact that even some
Navigation Device developers that rely
on the three Information Flows to
provide access to MVPD service may
have other business relationships with
MVPDs unrelated to the provision of
navigation devices? Are there other
interpretations that can assure a
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competitive market as Congress
intended?
We seek comment on this statutory
analysis. Are there other sources of
Commission authority to adopt the
proposed rules? For example, we invite
commenters to discuss the
Commission’s authority under Sections
624A and 335 of the Act and any other
relevant statutory provisions.
Alternatively, should we modify our
definition of ‘‘navigation devices’’ to
treat software on the device (such as an
application) that consumers use to
access multichannel video programming
and other MVPD services as a
‘‘navigation device,’’ separate and apart
from the hardware on which it is
running? For example, we seek
comment on whether we should add a
sentence to our definition of ‘‘navigation
devices’’ that states, ‘‘This term includes
software or hardware performing the
functions traditionally performed in
hardware navigation devices.’’ Would
such a modification be consistent with
our statutory directive under section
629 to ‘‘adopt regulations to assure the
commercial availability . . . of
converter boxes, interactive
communications equipment, and other
equipment’’ used by consumers to
access multichannel video programming
and other services offered over MVPD
systems? What implications would
modification of our definition of
‘‘navigation devices’’ in this manner
have on our current navigation devices
rules? Would this definitional change
impact Commission rules in other
contexts? If so, commenters should
identify the specific rule, how the
definitional change would impact the
rule, and whether further rule changes
would be necessary to reflect the rule
modification adopted in this
proceeding. For example, would such a
modification alter the accessibility
obligations of device manufacturers and
software developers and, if so, in what
manner?
Proposals. As discussed above, we do
not believe that the current marketplace
provides the ‘‘commercial availability’’
of competitive navigation devices by
manufacturers, retailers, and other
vendors not affiliated with any MVPD
that can access multichannel video
programming within the meaning of
section 629. Given our experience to
date, we believe that Section 629 cannot
be satisfied—that is, we cannot assure a
commercial market for devices that can
access multichannel video
programming—unless companies
unaffiliated with an MVPD are able to
offer innovative user interfaces and
functionality to consumers wishing to
access that multichannel video
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programming. This interpretation is in
line with our current rules, which led to
the creativity and consumer benefits of
the CableCARD regime. We also believe
that the goals of section 629 will not be
met absent Commission action, given
MVPDs’ incentive to limit competition.
As we begin to craft rules that will meet
our 629 obligations, there are seven
objectives that seem paramount to our
effort.
First, consumers should be able to
choose how they access the
multichannel video programming to
which they subscribe (e.g., through the
MVPD-provided user interface on an
MVPD-provided set-top box or app,
through a set-top box offered by an
unaffiliated vendor, or through an
application or search interface offered
by an unaffiliated vendor on a device
such as a tablet or smart TV). We
propose a rule to define these
‘‘Navigable Services’’ as an MVPD’s
multichannel video programming
(including both linear and on-demand
programming), every format and
resolution of that programming that the
MVPD sends to its own devices and
applications, and Emergency Alert
System (EAS) messages, because we
tentatively conclude that these elements
are what comprise ‘‘multichannel video
programming’’ as that term appears in
section 629. We seek comment on this
definition and whether there is
information beyond the multichannel
video programming and EAS messages
that are essential parts of ‘‘multichannel
video programming and other services
offered over multichannel video
programming systems’’ that a navigation
system needs to access and that we
should include in the definition. For
example, if an MVPD offers a ‘‘cloud
recording’’ service that allows
consumers to record programs and store
them remotely, should that cloud
recording service be a ‘‘Navigable
Service’’? We seek comment on how to
define ‘‘MVPD service.’’
Second, we recognize that the few
successful CableCARD devices all have
something in common: They provide
user interfaces that compete with the
user interfaces MVPD-provided set-top
boxes render. Therefore, MVPDs and
unaffiliated vendors must be able to
differentiate themselves in order to
effectively compete based on the user
interface and complementary features
they offer users (e.g., integrated search
across MVPD content and over-the-top
content, suggested content, integration
with home entertainment systems, caller
ID, and future innovations).
Third, unaffiliated vendors must be
able to build competitive navigation
devices, including applications, without
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14037
first obtaining approval from MVPDs or
organizations they control. Senators
Markey and Blumenthal found that
MVPDs take in approximately $19.5
billion per year in set-top box lease fees,
so MVPDs have a strong financial
incentive to use an approval process to
prevent development of a competitive
commercial market and continue to
require almost all of their subscribers to
lease set-top boxes.
Fourth, unaffiliated vendors must
implement content protection to ensure
that the security of MVPD services is not
jeopardized, and must respect licensing
terms regarding copyright, entitlement,
and robustness. This will ensure parity
between MVPD-provided and
competitive navigation devices.
Fifth, our rules should be technology
neutral, permitting both software (e.g.,
cloud delivery) and hardware solutions,
and not impede innovation. This will
ensure that consumers will not be
forced to use outdated, power-hungry
hardware to receive multichannel video
programming services.
Sixth, our rules should allow
consumers to use the same device with
different MVPDs throughout the
country. Device portability will
encourage MVPD competition because
consumers will be able to change their
video service providers without
purchasing new equipment.
Finally, our rules should not prescribe
a particular solution that may impede
the MVPD industry’s technological
progress. We seek comment on these
seven objectives, their appropriateness,
and in particular their relative
importance.
Based on our tentative conclusion that
the market for navigation devices is not
competitive, with the above objectives
in mind, we propose rules that will
assure a competitive market for devices
that can access multichannel video
programming without jeopardizing
security of the programming or an
MVPD’s ability to prevent theft of
service, as section 629 requires. Like the
authors of the DSTAC Report, we split
our discussion of these proposals into
sections regarding the non-security and
security elements of multichannel video
programming services.
The rules we propose are intended to
address a fundamental feature of the
current market for multichannel video
programming services, namely the
‘‘wide diversity in delivery networks,
conditional access systems, bidirectional communication paths, and
other technology choices across MVPDs
(and even within MVPDs of a similar
type).’’ In 1998, the Commission
concluded that it could address this
technological diversity in one of two
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ways, either via complex devices, or via
translation of those diverse network
technologies into a standardized format.
This analysis stands seventeen years
after it was adopted. We do not wish to
impose a single, rigid, governmentimposed technical standard on the
parties, but we understand that it would
be impossible to build widely used
equipment without some
standardization. Therefore, as explained
further below, we propose to allow
MVPDs to choose the specific standards
they wish to use to make their services
available via competitive navigation
devices or solutions, so long as those
standards are in a published,
transparent format that conforms to
specifications set by an open standards
body. We also tentatively conclude that
we should require MVPDs to comply
with the rules we propose two years
after adoption. We seek comment on
this tentative conclusion.
Non-Security Elements: Service
Discovery, Entitlement, and Content
Delivery. We propose an approach to
non-security elements that balances the
interests expressed by the members of
the DSTAC and commenters who filed
in response to the DSTAC Report. Under
this approach, we will require MVPDs
to provide Service Discovery,
Entitlement, and Content Delivery
information (the ‘‘Information Flows’’)
in standardized formats that the MVPD
chooses. Our proposal is based on the
tentative conclusion that the
Information Flows are necessary to
ensure that developers that are not
affiliated with an MVPD can develop
navigation devices, including software,
that can access multichannel video
programming in a way that will assure
a commercial market. We believe that
this proposed requirement is the least
burdensome way to assure commercial
availability of navigation devices (the
specifications necessary to provide
these Information Flows appear to exist
today) and is consistent with our prior
rules. Moreover, this approach is
technology neutral—the Commission
would not dictate the MVPD’s decision
whether to rely on hardware or software
to make the Information Flows
available. Therefore, the proposed
approach would provide each MVPD
with flexibility to choose the standard
that best aligns with its system
architecture. It would also give
unaffiliated entities access to the
Information Flows in a published,
transparent, and standardized format so
that those entities would understand
what information is available to them.
We believe that this is the best approach
because the proposal does not require
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the Commission to prescribe or even
approve the standards so long as the
Information Flows are available. A
benefit of this approach is that affected
industries will be able to evolve as
technology improves.
Under our proposed rule, we would
require each MVPD to provide Service
Discovery Data, Entitlement Data, and
Content Delivery Data for its ‘‘Navigable
Services’’ in published, transparent
formats that conform to specifications
set by open standards bodies. Under this
proposal, we would require MVPDs to
provide these Information Flows in a
manner that does not restrict
competitive user interfaces and features.
We seek comment below on this
proposed rule and on our proposed
definitions of the terms (1) Service
Discovery Data, (2) Entitlement Data, (3)
Content Delivery Data, and (4) Open
Standards Body.
We base these proposed rules on three
main points from the DSTAC Report
related to non-security elements that we
find compelling. First, we agree with the
Competitive Navigation advocates that
developers need the Information Flows
in a standardized format to encourage
development of competitive,
technology-neutral solutions for
competitive navigation. We also agree
with the Proprietary Applications
advocates, however, that providing
MVPDs with flexibility, where it will
not impair the competitive market, will
encourage and support innovation.
Significantly, consistent with a major
point of agreement in the DSTAC
Report, these proposed rules do not
require MVPDs to ‘‘commonly rely’’ on
the Information Flows for their own
navigation devices, so they will not
need to replace the devices that they
currently provide their subscribers. We
seek comment below on our proposed
definitions of these three Information
Flows. In particular, we seek comment
on how detailed our definitions should
be; that is, will standards-setting bodies
define the details of what information
should be in the Information Flows,
sufficient to assure a commercial market
for navigation systems and meet our
regulatory goals? Should we define this
with the same amount of detail
proposed in the DSTAC Report? Are the
definitions we propose appropriate for
all MVPDs, or does the diversity in
network architectures justify different
definitions for traditional cable,
satellite, and IP-based services?
We propose to define Service
Discovery Data as information about
available Navigable Services and any
instructions necessary to request a
Navigable Service. We tentatively
conclude that the Service Discovery
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Data must include, at a minimum,
channel information (if any), program
title, rating/parental control
information, program start and stop
times (or program length, for on-demand
programming), and an ‘‘Entertainment
Identifier Register ID’’ so that
competitive navigation devices can
accurately convey to consumers the
programming that is available. We seek
comment on whether this is the
minimum amount of information that
would allow a competitive navigation
device developer to build a competitive
system. Should this data also include
information about the resolution of the
program, PSIP data, and whether the
program has accessibility features such
as closed captions and video
description? Should this data include
the program description information
that the MVPD sends to its own
navigation devices? For example, is it
necessary for the data to include
descriptive information about the
advertising embedded within the
program? Our tentative view is that this
level is detail is not necessary. Should
it include capabilities of the MVPD’s
Navigable Services? For instance, the
DSTAC Report refers to ‘‘stream
management’’ as important information
that conveys the number of video
streams that a particular system can
handle based on system bandwidth,
tuner resources, or fraud prevention.
One approach is that the MVPD could
provide unaffiliated devices with
information about the maximum
number of simultaneous video streams
that can be watched or recorded via the
Service Discovery Data flow. We seek
comment on this approach.
We propose to define Entitlement
Data as information about (1) which
Navigable Services a subscriber has the
rights to access and (2) the rights the
subscriber has to use those Navigable
Services. This reflects our assumption
that Entitlement Data will include, at a
minimum, (1) copy control information
and (2) whether the content may be
passed through outputs, and if so, any
information pertaining to passing
through outputs such as further content
protection and resolution, (3)
information about rights to stream the
content out-of-home, (4) the resolutions
that are available on various devices,
and (5) recording expiration date
information, if any. What additional
rights information should be included
in Entitlement Data? We also propose to
require that this data reflect identical
rights that a consumer has on
Navigation Devices that the MVPD sells
or leases to its subscribers. Consumers
must be able to receive and use all of
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content that they pay for no matter the
device or application they choose, so
long as that device or application
protects content sufficiently. We seek
comment on whether our proposed
definition is flexible enough to
adequately address future business
models. Will consumers’ rights to
‘‘access’’ content vary from their rights
to ‘‘use’’ the content? For example, what
if a consumer subscribes to a 4K feed of
a particular channel, but the device only
has content protection that is approved
by the content owner to protect the
high-definition feed? Will our proposed
definition address that situation? How
should we treat Navigable Services that
can be recorded and stored remotely
(i.e., ‘‘cloud recording’’ services)?
Would our requirement that Entitlement
Data be identical for competitive
navigation devices and MVPD-provided
navigation devices ensure that a
subscriber could record content on a
competitive navigation device if the
MVPD allows subscribers to record and
store that content remotely?
We propose to define Content
Delivery Data as data that contains the
Navigable Service and any information
necessary to make the Navigable Service
accessible to persons with disabilities
under our rules. We seek comment on
this definition. Does content delivery
include services other than
multichannel video programming and
accessibility information? For example,
the DSTAC Report stated that some
MVPDs provide applications that
include news headlines, weather
information, sports scores, and social
networking. We tentatively conclude
that such information is unnecessary to
include in the definition of Content
Delivery Data because that information
is freely available from other sources on
a variety of devices, whereas
multichannel video programming is not.
The provision of such applications may
allow MVPDs and unaffiliated
companies to distinguish themselves in
a competitive market. In addition to the
applications listed in the DSTAC
Report, NCTA states that MVPDs offer
services that allow subscribers ‘‘to
switch between multiple sports games
or events or camera angles, view[]
video-on-demand with full interactive
‘extras,’ shopping by remote, or see[] the
last channels they tuned.’’ Is there
anything in our proposed definition that
would foreclose the possibility that a
competitive navigation device could
offer these services? We seek comment
on this tentative conclusion.
As discussed above, we propose to
require MVPDs to provide the
Information Flows in published,
transparent formats that conform to
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specifications set by ‘‘Open Standards
Bodies.’’ We seek comment on our
proposed definition of Open Standards
Body: A standards body (1) whose
membership is open to consumer
electronics, multichannel video
programming distributors, content
companies, application developers, and
consumer interest organizations, (2) that
has a fair balance of interested members,
(3) that has a published set of
procedures to assure due process, (4)
that has a published appeals process,
and (5) that strives to set consensus
standards. We seek comment on
whether these are the appropriate
characteristics. Are there others we
should consider? We believe that there
is at least one body that meets this
definition but invite commenters to
provide examples of such bodies. We
also believe that the characteristics
listed in the definition would arm the
Commission with an established test to
judge whether an MVPD’s method of
delivering the three Information Flows
is sufficient (in combination with the
other elements of the proposal
discussed in this item) to assure a retail
market. The five characteristics that
define an Open Standards Body would
ensure that navigation system
developers have input into the
standards-setting process, give them
confidence that their devices will be
able to access multichannel video
programming, and prevent them from
needing to build a glut of ‘‘capacities to
function with a variety of types of
different systems with disparate
characteristics.’’ We seek comment on
this proposed approach.
We seek comment on whether our
proposal addresses the critiques of the
Competitive Navigation approach that
are set forth in the DSTAC Report,
comments filed in response to that
report, and recent ex partes. A
consistent argument against the
Competitive Navigation approach has
been its emphasis on a required set of
standards. The Commission has also
been wary of stifling ‘‘growth,
innovation, and technical
developments’’ through regulations to
implement section 629. We therefore
seek comment on whether our proposed
approach, which does not mandate
specific standards, balances these
critiques against the need for some
standardization. Would this
appropriately implement Congress’s
clear direction in section 629 to ‘‘adopt
regulations to assure the commercial
availability’’ of navigation devices ‘‘in
consultation with appropriate industry
standard-setting organizations’’? If not,
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how can we achieve that Congressional
directive?
NCTA claims that the Competitive
Navigation approach would take years
of lengthy standards development to
implement. Competitive Navigation
advocates, however, filed a set of
specifications for Service Discovery
Data, Entitlement Data, and Content
Delivery Data, largely based on DLNA
VidiPath, that they claim could achieve
the Competitive Navigation proposal
today. They also claim that ‘‘any
necessary standardization, if pursued in
good faith, should take no more than a
single year.’’ We seek comment on these
views. The Competitive Navigation
advocates submitted evidence that
DLNA has a toolkit of specifications
available. Given this evidence, we
propose to require MVPDs to comply
with the rules two years after adoption.
We seek comment on whether the
standards-setting process, if pursued in
good faith, could allow MVPDs to meet
that proposed implementation deadline.
We seek specificity on what more work
needs to be done for an Open Standards
Body to develop standards for Service
Discovery Data, Entitlement Data, and
Content Delivery Data. Given the
current toolkits of specifications for
Service Discovery Data, Entitlement
Data, and Content Delivery Data, is it
possible for us to adopt a ‘‘fallback’’ or
‘‘safe harbor’’ set of specifications? If so,
should they be those proposed by the
Competitive Navigation advocates, or
others? We also seek comment on any
other mechanisms we can adopt to
ensure that MVPDs and other interested
parties cooperate in prompt
development of standards.
The DSTAC Report includes an
‘‘Implementation Analysis’’ prepared by
opponents of the Competitive
Navigation approach, arguing that it
does not fully establish a method for
replicating, in a competitive navigation
device, all of the services that an MVPD
might offer. Our proposal’s grant of
flexibility to MVPDs gives them the
opportunity to seek and adopt standards
in Open Standards Bodies that will
allow such replication. We seek
comment on this issue.
Some commenters argue that the
proposal constitutes compelled speech,
or interference with the manner of
speech of MVPDs, and thus imperils the
First Amendment rights of these
speakers. The Commission does not
believe that the proposed rules infringe
MVPDs’ First Amendment rights. The
proposal to require MVPDs to provide
Content Delivery Data would simply
require MVPDs to provide content of
their own choosing to subscribers to
whom they have voluntarily agreed to
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provide such content. The rules would
not interfere in any way with the
MVPD’s choice of content or require
MVPDs to provide such content to
anyone to whom they have not
voluntarily entered into a subscription
agreement. Rather, the rules would
simply allow the subscriber to access
the programming that the MVPD has
agreed to provide to it on any compliant
Navigation Device. Thus, it does not
seem that this aspect of the proposed
rules infringes MVPDs’ First
Amendment rights. The proposal to
require MVPDs to provide Service
Discovery Data and Entitlement Data
would require MVPDs to disclose
accurate factual information concerning
the Navigable Service and subscribers’
rights to access it. Service Discovery
Data is simply information about the
Navigable Service, while Entitlement
Data is information about the
subscriber’s rights to use the Navigable
Service, designed to protect the service
from unauthorized access. We believe
that these proposed disclosure
requirements would withstand scrutiny
under the First Amendment. In general,
government regulation of commercial
speech will be found compatible with
the First Amendment if it meets the
criteria laid out in Central Hudson Gas
& Electric Corp. v. Public Service
Commission, 447 U.S. 557, 566 (1980):
(1) There is a substantial government
interest; (2) the regulation directly
advances the substantial government
interest; and (3) the proposed regulation
is not more extensive than necessary to
serve that interest. In Zauderer v. Office
of Disciplinary Counsel, 471 U.S. 626,
651 (1985), the Supreme Court adopted
a more relaxed standard to evaluate
compelled disclosure of ‘‘purely factual
and uncontroversial’’ information.
Under the standard set forth in
Zauderer, compelled disclosure of
‘‘purely factual and uncontroversial’’
information is permissible if
‘‘reasonably related to the State’s
interest in preventing deception of
consumers.’’ The District of Columbia
Circuit recently held in American Meat
Institute v. U.S. Department of
Agriculture, 760 F.3d 18 (D.C. Cir. 2014)
(en banc), that government interests
other than correcting deception can be
invoked to sustain a disclosure
requirement under Zauderer. Here, the
proposed rules would require the
disclosure of purely factual and
uncontroversial information concerning
the MVPD’s service, which we believe
would be sustained under the Zauderer
and Circuit Court precedents because
the disclosures are reasonably related to
advancing the government interest in
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fostering competition in the market for
devices used by consumers to access
video programming. We have tentatively
concluded that disclosure of this
information is necessary to ensure that
developers who are not affiliated with
an MVPD can develop navigation
devices that can access multichannel
video programming services, so as to
foster the commercial market in such
devices envisioned by Congress. This is
a policy that Congress directed the
Commission to advance through the
adoption of rules, and we propose to
fulfill that statutory obligation in a
manner that does not impermissibly
infringe on MVPDs’ First Amendment
rights. We seek comment on this
analysis.
Finally, some commenters argue that
the Competitive Navigation approach
would require MVPDs to deploy ‘‘a New
Operator-Supplied Box’’ to their
subscribers. Other commenters disagree
with this assertion, and state that the
solution could be implemented in the
cloud at the MVPD’s discretion, thereby
avoiding the need for new or additional
equipment. We believe that our
proposal does not require most MVPDs
to develop or deploy new equipment,
nor would it require subscribers to
obtain additional or new equipment. In
fact, our proposal may make it easier for
MVPDs to offer cloud-based services
because it gives each MVPD the
flexibility to choose the standards that
best achieve its goals. We seek comment
on this belief. Would our proposal
necessitate any changes to the MVPD’s
network, or would it give the MVPD the
discretion to decide whether to modify
its system architecture, as we intend?
Proprietary Applications. The
DSTAC’s Proprietary Applications
approach proposed six different
methods to deliver MVPD services that
would require consumers to use the
MVPD’s proprietary user interface. As
discussed above, we have significant
doubt that such an approach could
assure a commercial market for
navigation devices as Section 629
requires. However, we seek comment on
the DSTAC’s Proprietary Applications
approach and whether the Proprietary
Applications approach could satisfy
section 629.
We also seek comment on whether
our proposed rules could achieve the
benefits that the DSTAC Report’s
Proprietary Applications approach
endeavors to achieve. One of the
purported benefits of the Proprietary
Applications approach is that it would
provide MVPDs ‘‘diversity and
flexibility.’’ Our proposal attempts to
give MVPDs a diversity of choices and
flexibility in making their Navigable
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Services available through competitive
navigation devices, by allowing them to
choose from any standard to offer the
Information Flows, so long as the
Information Flows are provided in a
published, transparent format
developed by Open Standards Bodies.
Does this provide flexibility to MVPDs,
while still sufficiently limiting the
universe of standards such that a device
could be built for a nationwide market?
We seek comment on how much it
would cost to build a single device that
is compatible with all of the approaches
listed by the Proprietary Applications
advocates in the DSTAC Report. If a
device were compatible with all of these
Proprietary Applications approaches,
would it be compatible with and able to
receive all multichannel video
programming services? How would this
square with our statutory mandates
under Sections 624A (with respect to
cable operators) and 629 of the Act?
Section 629 directs us to adopt
regulations to assure a market for
devices ‘‘from manufacturers, retailers,
and other vendors not affiliated with
any multichannel video programming
distributor.’’ If device compatibility
relies on MVPDs developing ‘‘device
specific apps,’’ how could we assure
entities that are not affiliated with the
MVPD that their devices will be able to
access multichannel video programming
services? How would device
manufacturers and consumers ensure
that support for the application is not
withdrawn by the MVPD without
consultation with the device
manufacturer and consumers? Do
proprietary applications impose costs or
certification processes that could, if left
unchecked, thwart the mandates of
Section 629? As an alternative to our
proposal, could and should we require
MVPDs to develop applications within
a specific timeframe for each device
manufacturer that requests such an
application, and to support that
application indefinitely? Section 629
also directs the Commission to adopt
regulations ‘‘in consultation with
appropriate industry standard-setting
organizations.’’ Does this suggest that
the Proprietary Applications approach
proposed in the DSTAC Report, which
is not entirely standards-based, is not
what Congress had in mind? Are
applications, as they have been
deployed, ancillary to leased devices,
and therefore unlikely lead to retail
competition with leased devices? Are
the DLNA VidiPath, RVU, DISH Virtual
Joey, and Sling Media Technology
Client applications ‘‘two-device’’
solutions that would require consumers
to attach MVPD-provided equipment to
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a separate piece of consumer-owned
hardware? What standards, protocols, or
specifications exist that would allow
MVPDs to offer those services without
any MVPD-specific equipment inside a
consumer’s home, or from the cloud?
Could MVPDs use those standards,
protocols, or specifications if we adopt
our proposal? We also seek comment on
any other element of the Proprietary
Applications approach.
Proposal Regarding Security
Elements. We propose that MVPDs be
required to support a content protection
system that is licensable on reasonable
and nondiscriminatory terms, and has a
‘‘Trust Authority’’ that is not
substantially controlled by an MVPD or
by the MVPD industry. We believe this
approach best balances the benefits of
flexibility in content protection choices
by MVPDs with the need of
manufacturers to choose from a limited
universe of independently controlled
content protection systems. Below we
describe the two alternative proposals
set forth by DSTAC Working Group 3,
and detail the concerns raised about
each by commenters. We then discuss
why we believe neither approach on its
own would be sufficient to meet the
Commission’s goals in this proceeding,
and propose a ‘‘via media’’ that could
allow for a competitive market for
innovative retail navigation devices
while also affording MVPDs significant
flexibility.
DSTAC Proposals. The DSTAC’s
Working Group 3, which focused on
security, had significant points of
agreement. Most fundamentally, the
group agreed that downloaded security
components need to remain in the
control of the MVPD, but that consumer
devices could not be built to
simultaneously support every
proprietary content protection system.
Just as in the non-security context,
however, DSTAC Working Group 3 had
fundamental disagreements. As
summarized in the DSTAC Report,
Working Group 3 proposed two
alternative approaches. The first is the
‘‘HTML5’’ approach, sometimes
described as the ‘‘DRM’’ approach,
which ‘‘consists of MVPD/OVDs
supplying media streams over HTTPS
[the secure version of the protocol used
to transfer data between a browser and
Web site] and CE/CPE devices accessing
and decrypting those media streams by
supplying devices that implement the
HTML5, EME, MSE and Web Crypto
APIs [software permitting secure
handling of the media streams by the
devices].’’ The most vocal advocates of
the HTML5 approach are MVPDs and
content providers. The second approach
is the ‘‘Media Server,’’ in which
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‘‘[n]etwork security and conditional
access are performed in the cloud, and
the security between the cloud and
retail navigation devices is a welldefined, widely used link protection
mechanism such as DTCP.’’ The
strongest advocates of the Media Server
approach are consumer electronics
manufacturers and consumer-facing
online service providers, as well as
consumer advocates. Content protection
approaches similar to both proposals are
in widespread use today, in other
content delivery contexts. Although
there are differences in how they
currently manifest, the key distinction is
the way in which they allow MVPDs to
control access to content—their
‘‘conditional access’’ systems.
The HTML5 approach allows an
MVPD to rely on any digital rights
management (DRM) system that it
chooses to manage its content. DRM, in
this context, refers to a system of
content protection that is based on
permissions granted from a centralized
server that the content provider (in this
case, the MVPD) controls. DRM prevents
subscribers from using the programming
they are entitled to access in
unauthorized ways. If a subscriber
wishes to watch a particular program,
the consumer’s device contacts the
rights server. If the subscriber is entitled
to view, record, or otherwise utilize the
content, then the rights server sends a
message of approval, and the device
displays the content. If the subscriber is
not entitled to perform that task with
the content, then the rights server sends
a message of disapproval, and the
device does not perform the task.
Traditionally, rights servers for video
are not located in consumers’ homes, so
they do not require additional
equipment in the home. Devices like
smart TVs and streaming devices that
are able to play programming protected
by DRM must be built to conform to
each DRM, however, so not every device
is equipped to handle each type of DRM
employed by MVPDs and other video
distributors today.
Under the Media Server approach,
conditional access is managed before
programming enters consumer devices,
and the programming is protected when
moving to consumer devices by a
standardized link protection system.
Link protection, in this context, is an
encrypted connection between a source
and a receiver. The system is built on
the assumption that any device that has
a certificate that deems it trustworthy,
granted by a trusted authority at the
time of manufacture and not
subsequently revoked by the Trust
Authority, will treat content as
instructed by copy control information
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embedded in data that is transmitted
with content. Like DRM, link protection
prevents subscribers from using the
programming to which they subscribe in
unauthorized ways. This technology is
how a Blu-ray player sends video to a
television set when physically
connected—there is no additional
verification step necessary, because the
television has a certificate that the Bluray player trusts, and the television has
that certificate because it was tested by
the organization that controls the
bestowal of certificates at manufacture
to make sure that it is a secure device.
The Digital Transmission Licensing
Administrator (DTLA), which was
founded by Intel Corporation, Hitachi,
Ltd., Panasonic Corporation, Sony
Corporation, and Toshiba Corporation,
is an example of an organization that
hands out those certificates. All of the
five major Hollywood studios have
approved DTLA’s link-protection
technology (DTCP) for protecting
content as it travels from source to
receiver. Traditionally, link protection
has been designed to protect content
within the home as it travels from one
device (for example, a Blu-ray player) to
another (for example, a TV set).
Criticism of the DSTAC Proposals.
Since publication of the DSTAC Report,
commenters have raised significant and
compelling concerns about universally
imposing either approach in the way
described by its advocates. Criticism of
the HTML5 approach has come from a
spectrum of commenters outside the
MVPD community, but has centered on
concern that MVPDs could abuse their
ability to fully control the conditional
access system necessary to access their
content. For example, the Consumer
Video Choice Coalition argues that this
approach would keep control in the
hands of MVPDs that ‘‘have a history’’
of using their leverage over existing
application deployment to prevent
‘‘consumers from viewing content they
have paid for on the device of their
choice.’’ The DRM licensor could be the
MVPD itself, if it chose to offer only a
proprietary DRM solution, obviously
posing a challenge to any device
manufacturer attempting to compete.
Critics of the Media Server approach
have emphasized the security
difficulties potentially posed by a
standardized link protection system. For
example, some commenters have stated
that the current version of DTCP, the
industry standard, is inadequate to
protect 4K and ultra-high definition
content. Commenters have also argued
that the technical limitations on the
current version of DTCP would require
MVPD-provided equipment be in the
home. DTLA has filed comments
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responding to both of these criticisms,
stating that the soon-to-be-finalized
version of DTCP will be secure enough
to protect the highest value content, and
flexible enough to protect content
delivered from the cloud. NCTA, Adobe,
and ARRIS argue that, however good the
link protection system, if it were
industry-wide it would be a single,
static point of attack that hackers could
exploit, and it would be insufficiently
flexible to respond to threats as they
develop. NCTA argues that ‘‘[t]oday,
device manufacturers and video services
can choose from a competitive
marketplace of content protection
technologies to stay ahead of security
threats.’’ In contrast, they claim, the
Media Server proposal (specifically, as
described in filings after the issuance of
the DSTAC Report) would ‘‘lock[] out
the whole competitive market for DRM
and content protection.’’
The record reflects significant
consensus about the importance of
flexibility, though clear disagreements
exist about what that should look like.
Some of the strongest critiques are those
that could apply equally to any
approach imposed on all MVPDs and
competitive navigation device
manufacturers. The Commission has
often been wary of mandating the
adoption of specific technologies, rather
than functional goals. Indeed, a number
of commenters specifically warn against
‘‘tech mandates’’ in this space. Although
that particular phrasing is more often
heard from supporters of the HTML5
proposal, the warnings reflect a broader
concern about the importance of
flexibility. Public Knowledge argues
that the Media Server proposal is
superior because it is ‘‘versatile and
flexible,’’ compared to the HTML5
proposal, which is ‘‘too rigid
technologically.’’ Amazon asks us to
‘‘approach this issue from the
standpoint of giving service providers
technological flexibility.’’ Some
commenters argue that the Commission
should take no action given the lack of
consensus on this issue. A stance of
total inaction, however, would be an
abdication of our responsibility under
section 629. Without clear guidance
from the Commission on the question of
content protection, a truly competitive
retail market for alternatives to MVPD
set-top boxes is unlikely to develop.
We are persuaded that the HTML5
proposal is not consistent with our goals
in this proceeding. By leaving total
control of security decisions to MVPDs,
we would perpetuate a market in which
competitors are compelled to seek
permission from an MVPD in order to
build devices that will work on its
system. So long as MVPDs are
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themselves providing and profiting from
navigation equipment and services,
retail devices will be available only
when they benefit an MVPD, not when
they benefit consumers, and a truly
competitive market will remain out of
reach. Section 629, however, requires us
to ensure that our rules do not imperil
the security of the content MVPDs are
carrying. At the same time, we also are
not persuaded that we should require
the Media Server proposal. Mandating a
single shared content protection
standard for every piece of MVPD
content, as the Media Server proponents
suggest, would create too much
potential for vulnerability. It would
impose no requirement (and thus,
provide no guarantee) that the developer
of that single shared standard develop a
new, more robust version in the event
of a hack.
Security Proposal. Based on the
record, we believe there is a middle
path on the issue of content protection
that can allow for a competitive market
for innovative retail navigation devices,
including software, that also affords
MVPDs significant flexibility to protect
their content, evolve their content
protection, and respond to security
concerns. Verimatrix asked the
Commission not to ‘‘mandate either or
even both [DSTAC proposals] as ‘the’
standard solution.’’ They argued that
both should be available as part of a
‘‘toolkit’’ of approaches available to
MVPDs, a toolkit that could in fact
include other approaches with the
passage of time. We agree. We therefore
propose that MVPDs retain the freedom
to choose the content protection systems
they support to secure their
programming, so long as they enable
competitive Navigation Devices. In
order to do so, at least one content
protection system they deploy, and to
which they make available the three
Information Flows in their entirety,
must be ‘‘Compliant’’—licensable on
reasonable and non-discriminatory
terms, and must not be controlled by
MVPDs.
We believe this approach will give
MVPDs the flexibility they need to
avoid creating a ‘‘single point of attack’’
for hackers, and the freedom to set their
own pace on eliminating systemspecific content security equipment in
subscribers’ homes, in response to the
demands of the market. At the same
time, we believe it will assure
competitors and those considering
entering the market that they can build
to what is likely to be a limited number
of content protection standards
licensable on reasonable, nondiscriminatory terms, and expect their
navigation devices to work across
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MVPDs. They will not need to seek
approval, review, or testing from the
MVPDs themselves, who may have an
incentive to delay or impede retail
navigation devices’ market entry
because their leased navigation devices
will remain in direct competition with
the retail market for the foreseeable
future. We seek comment on these
assumptions.
Accordingly, we propose that MVPDs
must support at least one ‘‘compliant’’
conditional access system or link
protection technology, although they
may use others at the same time. A
Compliant Security System must be
licensable on reasonable,
nondiscriminatory terms, and have a
Trust Authority that is not substantially
controlled by any MVPD or group of
MVPDs. An MVPD must make available
the three Information Flows in their
entirety to devices using one of the
Compliant Security Systems chosen by
the MVPD. Such a system might
include, for example, future iterations of
DTCP or certain DRM systems.
Commenters state that these conditional
access systems could be refined to
permit the full range of activity
contemplated by the DSTAC, and cloudbased link protection that would
minimize or eliminate the need for
MVPD-provided equipment on the
customer’s premises. We seek comment
on this proposal, including whether we
need to modify our existing definition of
‘‘conditional access’’ in any way.
We invite comment on some specific
questions surrounding our proposal. As
noted above, DTLA has stated that a
pending DTCP update could fully
satisfy the requirements of this proposal
and the needs of MVPDs. Are there
other content protection systems,
particularly specific DRMs currently on
the market, that are likely to be able to
comply with the requirements of this
approach? We recognize that this
approach is likely to result in the need
for competitors to support more than
one Compliant Security System in their
navigation devices. We believe the
resulting number of Compliant Security
Systems would still allow Navigation
Device developers to offer competitive
options, but we seek comment on this
understanding. Is the term ‘‘Trust
Authority’’ and our definition—‘‘[an]
entity that issues certificates and keys
used by a Navigation Device to access
Navigable Services that are secured by
a given Compliant Security System’’—
sufficiently clear? Are there more
accurate or descriptive terms? Should
the entity that issues certificates be the
same as the one that issues keys?
Should the entity that licenses the
Compliant Security System also be the
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Trust Authority for that system? Are the
proposed restrictions on the Trust
Authority of a conditional access system
enough to ensure its independence from
MVPDs? What criteria shall we use to
determine whether a Trust Authority is
not ‘‘substantially controlled’’ by an
MVPD or by the MVPD industry?
Are there any other critical elements
necessary for this proposal to both
protect MVPD content and ensure a
market for competitors? Will the lack of
uniformity that may result from this
proposal create an undue burden on
competitive entities? Could an MVPD
support at least one Compliant Security
System but use a non-compliant content
protection system on their own
Navigation Devices in a manner that
favors their own Navigation Devices
(e.g., by selecting a Compliant Security
System that is computationally
burdensome for competitive devices)?
Should our rules take into account
differences in device, viewing location
(in-home and out-of-home), and picture
quality, or will our proposed ‘‘parity’’
requirement, discussed below, resolve
any issues in these areas? We also seek
comment on whether we should instead
adopt one of the DSTAC proposals, or
another alternative, as the universal
standard, and how such a standard
could achieve our goals of secure
openness in this proceeding. If another
alternative is proposed, the proponent
should provide sufficient detail to
compare it to the proposals set out here.
We also seek comment on any other
aspect of security relevant to our goals
in this proceeding that we should take
under consideration.
Parity. We propose to require that, in
implementing the security and nonsecurity elements discussed above,
MVPDs provide parity of access to
content to all Navigation Devices. This
will ensure that competitors have the
same flexibility as MVPDs when
developing and deploying devices,
including applications, without
restricting the ability of MVPDs to
provide different subsets of content in
different ways to devices in different
situations. Parity will also ensure that
consumers maintain full access to
content they subscribe to consistent
with the access prescribed in the
licensing agreements between MVPDs
and programmers. In order to achieve
parity, we propose three requirements.
First, if an MVPD makes its
programming available without
requiring its own equipment, such as to
a tablet or smart TV application, it must
make the three Information Flows
available to competitive Navigation
Devices without the need for MVPDspecific equipment. Second, at least one
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Compliant Security System chosen by
the MVPD must enable access to all the
programming, with all the same
Entitlement Data that it carries on its
equipment, and the Entitlement Data
must not discriminate on the basis of
the affiliation of the Navigation Device.
Third, on any device on which an
MVPD makes available an application to
access its programming, it must support
at least one Compliant Security System
that offers access to the same Navigable
Services with the same rights to use
those Navigable Services as the MVPD
affords to its own application. We
discuss these proposals below.
The first proposed requirement is
that, if an MVPD makes available an
application that allows access to its
programming without the technological
need for additional MVPD-specific
equipment, then it shall make Service
Discovery Data, Entitlement Data, and
Content Delivery Data available to
competitive Navigation Devices without
the need for MVPD-specific equipment.
For example, if an MVPD makes
available an iOS or Android application
that allows access to its programming, it
must provide the three Information
Flows to all competitive Navigation
Devices without requiring the use of
additional MVPD-specific equipment.
The ability of competitive Navigation
Devices to access content without
additional equipment is a concern that
has been raised repeatedly in the
DSTAC proceeding. We believe that our
regulations would not assure a
commercial market for Navigation
Devices if unaffiliated manufacturers,
retailers, and other vendors need to rely
on MVPD-provided equipment to
receive multichannel video
programming and affiliated entities do
not. We seek comment on that
assumption. We base this proposal on
the presumption that if an MVPD can
securely provide the information
necessary for its proprietary application
to access its programming without any
additional equipment, then the MVPD
should be able to provide that
information to non-affiliated Navigation
Devices similarly without additional
equipment. We seek comment on this
presumption. This proposal
complements the next, in that while the
entirety of the Information Flows must
be available to all competitive
Navigation Devices in this scenario, the
specifics of how each device may use
the Navigable Services depend on the
relevant Entitlement Data.
We recognize that DBS providers
specifically will be required to have
equipment of some kind in the home to
deliver the three Information Flows over
their one-way network, even if they also
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provide programming to devices
connected to the Internet via other
networks. How should this fact be
addressed by any rule that we adopt?
Are there content protection issues that
are unique to DBS providers? Are there
technical issues that a Navigation
Device developer would need to address
when developing a solution for a DBS
system? We seek comment on whether
we need to create a DBS exception to
our proposed rule regarding proprietary
applications that deliver MVPD content
without the use of additional MVPDspecific equipment. We intend for this
proposal to result in MVPDs serving the
vast majority of non-DBS subscribers
providing the Information Flows
without the presence of additional
MVPD-specific equipment. What
technology or standards available now
or in the near future will allow this
‘‘boxless’’ provision? What impact will
this have on MVPD systems? Will this
approach require any changes for
current subscribers who do not choose
to seek out a competitive Navigation
Device? Given the importance of
flexibility to the creation of a retail
market, is this proposal correctly
tailored? Would it be possible to ensure
nondiscriminatory provision of the
Information Flows, without requiring
additional MVPD-specific equipment in
the home, in another way? We seek
comment on this proposal.
The second proposed requirement
limits an MVPD’s ability to discriminate
in providing the Navigable Services to
competitive Navigation Devices. We
propose that at least one Compliant
Security System chosen by the MVPD
enables access to all resolutions and
formats of its Navigable Services with
the same Entitlement Data to use those
Navigable Services as the MVPD affords
Navigation Devices that it leases, sells,
or otherwise provides to its subscribers.
In addition, we propose that Entitlement
Data does not discriminate on the basis
of the affiliation of the Navigation
Device. Our proposed rule requires
MVPDs to make the Information Flows
fully available to any Navigation Device
using the Compliant Security System
they have chosen to support. Even
today, however, MVPDs that provide
their service to subscribers via
proprietary applications on certain
equipment such as mobile devices often
provide only a subset of their
multichannel video programming,
reserving the full service for set-top
boxes or other in-home viewing options.
We understand that these business
decisions are made for a variety of
reasons, including security and
contracts with content providers. We do
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not believe that this practice poses a
threat to the competitive market for
Navigation Devices so long as it is
applied in a nondiscriminatory fashion
and does not interfere with the ability
of competitive Navigation Device
makers to develop competitive user
interfaces and features. We seek
comment on this view.
Our intent is that each MVPD make
available complete access to all
purchased programming, on all
channels, at all resolutions, on at least
one Compliant Security System that it
chooses to support. Thus, Navigation
Devices accessing the three Information
Flows via that Compliant Security
System would have the same complete
access as an MVPD’s leased or provided
set-top box in the home. As noted
above, though, we recognize that
MVPDs may make distinctions
regarding the content delivered based
on the use case of a device. We
understand that use cases are generally
differentiated based on screen size and
in- or out-of-home viewing, and strength
of content protection used. We seek
comment on whether there are any other
meaningful distinctions among use
cases. We further understand that
Entitlement Data enforces these
distinctions in programming today, and
we propose to permit MVPDs to
continue to rely on Entitlement Data to
draw those distinctions, so long as
competitive Navigation Devices are
subject to only the same restrictions as
MVPD Navigation Devices. We seek
comment on this proposed requirement.
Does a prohibition on discrimination
based on whether the Navigation Device
developed is affiliated with the MVPD
assure equitable treatment for similarly
situated Navigation Devices? That is,
will our proposed rule ensure that a
competitive Navigation Device is able to
access the same content with the same
usage rights as a Navigation Device that
the MVPD provides?
The final proposed parity requirement
is that, on any device on which an
MVPD makes available an application to
access its programming, it must support
at least one Compliant Security System
that offers access to the same Navigable
Services with the same rights to use
those Navigable Services as the MVPD
affords to its own application. Our
intent here is to ensure parity of access
for competitive Navigation Device
developers. Our proposed rules do not
require MVPDs to choose Compliant
Security Systems that would allow
access from any device; they instead
must choose one or more Compliant
Security Systems to which devices can
be built. It may be possible for an MVPD
to abuse this flexibility, however, and
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choose only Compliant Security
Systems that are not available on a
device on which the MVPD makes
available its own application to access
its programming, thereby eliminating
competition for access to MVPD
programming via that device. The
proposed rule will ensure that a
competitive application can access
MVPD programming on devices on
which an MVPD makes available its
own application, thus further ensuring a
competitive market for devices
including applications. We seek
comment on this proposal.
We seek comment on whether the
three parity requirements described
above, in conjunction with the other
features of our proposal, will achieve
the goal of ensuring a competitive retail
market for Navigation Devices as
contemplated by section 629. We
particularly invite commenters to weigh
in on the expected efficacy of these
proposals, and their necessity in
meeting the mandate of section 629. We
are not proposing to impose a common
reliance requirement; rather, we are
striving to ensure equitable provision of
content to competitive Navigation
Devices, to the extent necessary to
achieve a competitive retail market. We
seek comment on this approach.
Licensing and Certification. We
believe that licensing and certification
will play important roles under our
proposed approach. MVPDs, MPAA,
and companies that supply equipment
to MVPDs argue that the Competitive
Navigation approach could violate
licensing agreements between MVPDs,
content companies, and channel guide
information providers. Based on our
review of the DSTAC Report, the record,
and the contract that CableLabs uses to
license technology necessary to build a
CableCARD device (DFAST), we have
identified three major subject matters
that pertain to licensing and
certification. As set forth below, we seek
comment on how licensing and
certification can address (1) robustness
and compliance, which ensure that
content is protected as intended, (2)
prevention of theft of service and harm
to MVPD networks, which ensures that
devices do not allow the theft of MVPD
service or physically or electronically
harm networks, and (3) important
consumer protections in the Act and the
Commission’s rules. We then invite
comment on alternative approaches we
could take to address these issues.
Compliance and Robustness. We seek
comment on whether licensing can
ensure adherence to copy control and
other rights information (‘‘compliance’’)
and adequate content protection
(‘‘robustness’’). Section 629(b) states
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that ‘‘[t]he Commission shall not
prescribe regulations under subsection
(a) of this section which would
jeopardize security of multichannel
video programming and other services
offered over multichannel video
programming systems, or impede the
legal rights of a provider of such
services to prevent theft of service.’’ We
interpret this section of the Act to
require that we ensure that our
regulations do not impede robustness
and compliance. To achieve this
statutory mandate, our regulations must
ensure that Navigation Devices (1) have
content protection that protects content
from theft, piracy, and hacking, (2)
cannot technically disrupt, impede or
impair the delivery of services to an
MVPD subscriber, both of which we
consider to be under the umbrella of
robustness (i.e., that they will adhere to
robustness rules), and (3) honors the
limits on the rights (including copy
control limits) the subscriber has to use
Navigable Services communicated in
the Entitlement Information Flow (i.e.,
that they adhere to compliance rules).
Through robustness and compliance
terms, we seek to ensure that negotiated
licensing terms imposed by content
providers on MVPDs are passed through
to Navigation Devices. Accordingly, our
proposal requires MVPDs to choose
Compliant Security Systems that
validate only Navigation Devices that
are sufficiently robust to protect content
and honor the Entitlement Data that the
MVPD sends to the Navigation Device.
This is consistent with our
understanding based on the DSTAC
Report that, in other contexts,
downloadable security systems usually
include robustness and compliance
terms as part of design audits, selfverification, or legal agreements, and
that an untrustworthy actor will not be
able to receive a certificate for its
Navigation Devices to verify
compliance. We seek comment on this
proposed approach to address
compliance and robustness. We also
seek comment on whether we need to
define the term ‘‘robustness and
compliance rules’’ in our proposed
definition of Compliant Security
System, or if that term has a common,
understood meaning, as reflected in the
DSTAC Report. Should these terms
include, at a minimum, what is
described in the DFAST license? Should
these terms contemplate protection of
licensing terms between user guide
information providers and MVPDs, and
thus require unaffiliated Navigation
Device developers to purchase their
own detailed program guide
information? Are there alternatives to
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our proposed approach that would
ensure robustness and compliance? Are
there other terms from the DFAST
license that we should cover in this
regard? In addition to section 629, are
there other sources of statutory
authority for imposing these compliance
and robustness requirements, such as
sections 335(a) and 624A of the Act?
What impact, if any, does the D.C.
Circuit’s decision in EchoStar Satellite
L.L.C. v. FCC have on the Commission’s
ability to adopt compliance and
robustness requirements?
Protection of MVPD Networks from
Harm and Theft. We also believe that a
device testing and certification process
is important to protect MVPDs’
networks from physical or electronic
harm and the potential for theft of
service from devices that attach directly
to the networks. We seek comment on
the extent to which unaffiliated devices
will attach directly to MVPD networks.
If devices will connect directly to the
MVPD network, is our existing rule
76.1203 sufficient to assure that those
devices do not cause physical or
electronic harm to the network? We do
not believe that each MVPD should have
its own testing and certification
processes. Under the CableCARD
regime, devices our rules allowed
testing to be performed by a qualified
test facility, which is defined as ‘‘a
testing laboratory representing cable
television system operators serving a
majority of the cable television
subscribers in the United States or an
appropriately qualified independent
laboratory with adequate equipment and
competent personnel knowledgeable
with respect to the’’ CableCARD
standards. We seek comment on
whether that approach protected cable
networks from physical and electronic
harm and from theft of service, and
whether it had any effect on the
commercial availability of CableCARD
devices. We also seek comment on
which entities have or may develop
testing and certification processes. What
kind of testing should be required? We
note, for example, there is a seven-step
certification process to ensure that
DLNA-certified devices do not have
defects that would harm networks. Is
this type of testing sufficient? We seek
comment on this proposal and any
alternative approaches, such as selfcertification.
Consumer Protection. It is essential
that any rules we adopt to meet the
goals of section 629 do not undermine
other important public policy goals
underlying the Communications Act,
which are achieved by means of
requirements imposed on MVPDs.
Specifically, certain commenters
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highlighted concerns that competitive
Navigation Device developers (i) would
not keep subscribers’ viewing habits
private, as MVPDs are required to do,
(ii) would violate advertising limits
during programming for children, and
(iii) would build devices that do not
display emergency alerts or closed
captioning or enable parental controls as
MVPDs are required to do. We are
encouraged by the fact that retail
navigation devices, such as TiVos, have
been deployed in the market for over a
decade without allegations of a loss of
consumer privacy, violations of
advertising limits during programming
for children, or problems with
emergency alerts and accessibility.
Nonetheless, because these consumer
protections are so important, we
propose to require that MVPDs
authenticate and provide the three
Information Flows only to Navigation
Devices that have been certified by the
developer to meet certain public interest
requirements. We tentatively conclude
that this certification must state that the
developer will adhere to privacy
protections, pass through EAS messages,
and adhere to children’s programming
advertising limits. This proposal would
mean that MVPDs are not required to
enable the Information Flows unless
they receive this certification, and also
that they are prohibited from providing
the Navigable Services to a Navigation
Device that does not have such a
certification. MVPDs cannot withhold
the three Information Flows if they have
received such certification and do not
have a good faith reason to doubt its
validity. This will ensure that the public
policy goals underlying these
requirements are met regardless of
which device a consumer chooses to
access multichannel video
programming. We seek comment on this
proposal and invite alternative
proposals within our jurisdiction that
would ensure that these important
consumer protections remain in effect
while we promote a competitive
navigation market. Should the proposed
certification address any other issues,
including compliance with the
Commission’s accessibility rules and
parental controls, or should we leave
these matters to the market? We also
seek comment on whether the retail
market will be competitive enough to
make any such regulation unnecessary
(that is, the competitive market will
assure that the protections that
consumers desire are adequately
protected).
We seek comment on the best way to
implement such a certification process.
Should this be a self-certification
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14045
process, or are there viable alternatives
to self-certification? For example,
should there be an independent entity
that validates the competitor’s
certification? Should we develop a
standardized form? Who would be
responsible for maintaining a record of
the certification? Could Open Standards
Bodies or some other third-party entity
require certification as part of their
regimes and maintain those records?
Alternatively, should the Commission
maintain a repository of certifications?
In addition, if there are lapses in
compliance with any certification, what
would be the appropriate enforcement
mechanism?
With respect to all MVPDs, we believe
that Section 629 of the Act provides
authority to impose these restrictions,
because consumers may be dissuaded
from opting for a competitive navigation
solution if they are not confident that
their interests will be protected to the
same extent as in an MVPD-provided
solution. With respect to DBS operators,
we also believe section 335(a)—which
directs the Commission to ‘‘impose, on
providers of direct broadcast satellite
service, public interest or other
requirements for providing video
programming’’—grants us authority to
ensure that these goals are met
regardless of whether the DBS
multichannel video programming is
accessed by means of a DBS-provided
device. We also seek comment on
whether the sources of statutory
authority for imposing on MVPDs
privacy requirements, advertising limits
on children’s programming, emergency
alerting requirements, closed captioning
requirements, video description
requirements, parental control
requirements, or other consumer
protection requirements also authorize
the Commission to require that MVPDs
provide the three Information Flows
only to Navigation Devices that have
been certified by the developer to meet
certain public interest requirements.
This will ensure that the new
Navigation Device rules will not
undercut our rules imposing those
public interest requirements. We seek
comment on these views and invite
commenters to suggest any other
sources of authority.
We seek comment on how MVPDs
could ensure that they do not provide
the Information Flows to uncertified
devices. Could the MVPD use device
authentication to ensure that they do
not send the three Information Flows to
uncertified Navigation Devices? Could
the Entitlement Data direct a device not
to display the Content Data unless the
Navigation Device was built by a
developer who is certified? Are there
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other methods MVPDs could use to
ensure that they send the Information
Flows only to Navigation Devices that
will honor these important consumer
protection obligations? Similarly, how
can MVPDs ensure, as both a technical
and practical matter, that the
Information Flows are no longer
provided if there are any lapses in a
competitor’s compliance with these
obligations?
We seek comment on how this
requirement will affect Navigation
Device developers. We do not expect it
will be difficult for developers to certify
to these consumer protections. For
example, such content as EAS alerts
will be included in the Information
Flows that MVPDs make available, and
we do not expect enabling receipt of this
content to be burdensome. Similarly, as
to ensuring the privacy of subscriber
information, given the national market
for consumer technology, they must
already ensure that their products and
services meet the privacy standards of
the strictest state regulatory regime.
Moreover, the global economy means
that many developers must comply with
the European Union privacy regulations,
which are much more stringent that the
requirements placed on MVPDs under
sections 631 and 338 of the
Communications Act.
Although we propose that competitive
device manufacturers certify
compliance with sections 631 and 338,
we seek comment on the extent to
which those manufacturers that collect
personally identifiable information from
consumers using their devices are
currently subject to state privacy laws
and the scope of any such laws. We
note, for example, that California’s
Online Privacy Protection Act applies to
an entity that owns an online service
that collects and maintains personally
identifiable information from consumers
residing in California who use the
online service if the online service is
used for commercial purposes. Would
this statute apply to competitive device
manufacturers to the extent that they
use the Internet to provide programming
guide, scheduling, and recording
information to consumers? Are there
similar state privacy laws covering
consumers residing in each of the other
states? To what extent do state privacy
laws require that manufacturers have
privacy policies? MVPDs are obligated
to provide privacy protections under
sections 631 and 338 of the Act. Do state
privacy laws require manufacturers to
provide a comparable level of consumer
protection? For example, the privacy
protections established by sections 631
and 338 are enforceable by both the
Commission and by private rights of
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action. Do any state laws provide for
both administrative and private rights of
action and/or damages in the event of a
privacy violation? TiVo asserts that it is
subject to enforcement by the FTC and
state regulators for any failures to abide
by its comprehensive privacy policy.
We note that the FTC has taken legal
action under its broad Section 5 ‘‘unfair
and deceptive acts’’ authority against
companies that violate their posted
consumer privacy policies. We seek
comment on whether state laws
governing unfair and deceptive acts
have similarly been used against
companies that violate their consumer
privacy policies and whether these laws
are applicable to competitive device
manufacturers. Furthermore, the Video
Privacy Protection Act, with limited
exceptions, generally prohibits
companies that provide video online
from disclosing the viewing history and
other personally identifiable
information of a consumer without the
consumer’s prior written consent. Does
this statute impose any obligations on
competitive device manufacturers to
protect personally identifiable
information collected from consumers?
Are there any other state or federal laws
that would help to ensure that
competitive device manufacturers
protect consumer privacy?
Licensing Alternatives. As an
alternative to the licensing and
certification approaches we lay out
above, should we instead require
industry parties to develop a
standardized license and certification
regime, similar to the DFAST license,
which has appeared to work at
balancing consumer protection issues
and allowing retail Navigation Device
developers to innovate? Who would be
responsible for managing that licensing
system? Should our Navigation Device
rules instead impose these terms by
regulation, either initially or if industry
parties cannot reach agreement? Does
the Commission have authority to
impose such terms via regulation? Has
competitive navigation under the
CableCARD regime led to any license
agreement violations, privacy violations,
or other violations of consumer
protection laws? If so, what were the
specifics of those violations, and how
were they resolved?
We do not currently have evidence
that regulations are needed to address
concerns raised by MVPDs and content
providers that competitive navigation
solutions will disrupt elements of
service presentation (such as agreedupon channel lineups and
neighborhoods), replace or alter
advertising, or improperly manipulate
content. We have not seen evidence of
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any such problems in the CableCARD
regime, and do not expect that the new
approach we propose above will allow
such behavior. Accordingly, we believe
these concerns are speculative, and
while we believe at this time it is
unnecessary for us to propose any rules
to address these issues, we seek
comment on this view. We also seek
comment on the extent to which
copyright law may protect against these
concerns, and note that nothing in our
proposal will change or affect content
creators’ rights or remedies under
copyright law. In the event that
commenters submit evidence indicating
that regulations are needed, we seek
comment on whether we have the
authority and enforcement mechanisms
to address such concerns.
Small MVPDs. We seek comment on
how any rules that we adopt could
affect small MVPDs, and whether we
should impose different rules or
implementation deadlines for small
MVPDs. We tentatively conclude that all
analog cable systems should be exempt
from the rules we propose today, just as
they were exempt from the original
separation of security rules. We also
seek specific comment on the American
Cable Association’s proposal to exempt
MVPDs serving one million or fewer
subscribers from any rules we adopt. Is
there a size-neutral way that we could
ensure that our rules are not overly
burdensome to MVPDs? The American
Cable Association also asserts that many
of its members are not prepared to
transition soon to delivery of their
services in Internet Protocol, but we
note that our proposed rules do not
require MVPDs to use Internet Protocol
to deliver the three Information Flows
or Compliant Security System. For
example, although we do not advocate
reliance on CableCARD as a long-term
solution, we note that the CableCARD
standard largely appears to align with
our proposed rules. Could the
CableCARD regime remain a viable
option for achieving the goals of Section
629 for those systems that continue to
use QAM technology? Are there any
changes to the CableCARD rules that
should be made in light of more than a
decade of experience with the regime or
to accommodate changes in the MVPD
industry since the rules were adopted?
Do MVPDs who have not transitioned to
IP delivery of control channel
information nonetheless provide IPbased applications to their customers or
use IP to send content to devices
throughout a home network? If so,
should such MVPDs be required to
comply with the rules requiring parity
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for other Navigation Device developers
via the Information Flows?
Billing Transparency. We seek
comment on how best to align our
existing rule on separate billing and
subsidies for devices with the text of the
Act, the current state of the marketplace,
and our goal of facilitating a competitive
marketplace for navigation devices.
Section 629 states that our regulations
‘‘shall not prohibit [MVPDs] from also
offering [navigation devices] to
consumers, if the system operator’s
charges to consumers for such devices
and equipment are separately stated and
not subsidized by charges for any such
service.’’ We note that, although Section
629(a) of the Act states that the
Commission ‘‘shall not prohibit’’ any
MVPD from offering navigation devices
to consumers if the equipment charges
are separately stated and not subsidized
by service charges, it does not appear to
affirmatively require the Commission to
require separate statement or to prohibit
cross-subsidies. In the Commission’s
1998 Report and Order, which
implemented section 629, the
Commission rejected the argument that
section 629’s requirements are
‘‘absolute’’ and that the section
‘‘expressly prevents all MVPDs from
subsidizing equipment cost with service
charges.’’ The Commission found that in
a competitive market ‘‘there is minimal
concern with below cost pricing because
revenues do not emanate from
monopoly profits. The subsidy provides
a means to expand products and
services, and the market provides a selfcorrecting resolution of the subsidy.’’
The Commission thus concluded that
‘‘[e]xisting equipment rate rules
applicable to cable television systems
not facing effective competition address
Section 629(a)’s requirement that
charges to consumers for such devices
and equipment are separately stated and
not subsidized by charges for any other
service.’’ Accordingly, the Commission
applied the separate billing and antisubsidy requirements set forth in
Section 76.1206 of our rules only to
rate-regulated cable operators. In 2010,
the Commission adopted ‘‘CableCARD
support’’ rules, which included pricing
transparency requirements and required
uniform pricing for CableCARDs
‘‘regardless of whether the CableCARD
is used in a leased set-top box or a
navigation device purchased at retail.’’
Developments since the 1998 Report
and Order raise a question whether the
applicability of the Act’s rate regulation
provisions should continue to
determine the applicability of our
separate billing and anti-subsidy rules.
At the time of that order, only a small
minority of cable systems had been
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determined to be subject to ‘‘effective
competition’’ as defined in the rate
regulation provisions of the Act and
thus exempted from rate regulation.
Since that time, the Commission has
made many findings that the statutory
test for effective competition was met
and updated its effective competition
rules to reflect the current MVPD
marketplace. We are no longer
convinced that the statutory test for the
applicability of rate regulation properly
addresses our objective of promoting a
competitive market for navigation
devices as directed by Section 629. We
base this proposed change in policy on
our belief that customers may likely
consider the costs of lease against
purchase when considering whether to
purchase a competitively provided
device, and must know what it costs to
lease a device in order to make an
informed decision. Accordingly, we
seek comment on whether we should
modify our billing and/or anti-subsidy
requirements set forth in section
76.1206.
In particular, under the circumstances
that exist today, should we revise our
rules to require all MVPDs to state
separately a charge for leased navigation
devices and to reduce their charges by
that amount to customers who provide
their own devices, regardless of whether
the statutory test for the applicability of
rate regulation is met? Is such a
requirement a necessary or appropriate
complement to the rules we propose
today to facilitate the offering of
competitive navigation devices? We
tentatively conclude that we should
adopt such a requirement with respect
to all navigation devices, including
modems, routers, and set top boxes, and
we invite comment on that tentative
conclusion.
If we adopt a requirement that all
MVPDs state separately a charge for
leased navigation devices, we invite
comment on whether we should also
impose a prohibition on crosssubsidization of device charges with
service fees. Section 629 discusses
separate statement and prohibition of
cross-subsidy in the same sentence; but
we read the statute to permit us to make
an individual determination whether to
impose one requirement or the other, or
both (or neither). Do present market
circumstances warrant adoption of an
anti-subsidization rule? Observers often
suggest that the charges currently
imposed for leased devices are typically
excessive, rather than cross-subsidized.
A requirement of separate statement, by
itself, should help to enable competition
in the marketplace to ameliorate
excessive pricing of leased devices. Is it
therefore unnecessary at this time for us
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to adopt an expanded rule against crosssubsidization? Or would such a rule
provide a useful prophylactic against
future attempts to cross-subsidize?
Would it suffice to require that a
nonzero price be identified for any
leased device? We seek comment on
these issues. Commenters supporting
adoption of an expanded anti-crosssubsidization rule should address the
Commission’s previous determination
that ‘‘[a]pplying the subsidy prohibition
to all MVPDs would lead to distortions
in the market, stifling innovation and
undermining consumer choice.’’
If we decide to adopt an updated antisubsidy rule, how should we determine
whether a device fee is crosssubsidized? For example, would the
factors set forth in section 76.1205(b)(5)
for determining the price that is
‘‘reasonably allocable’’ to a device lease
fee be applicable for this purpose? How
should we consider the possibility that
an MVPD would ascribe a zero or nearzero price to a navigation device, and
what implications might there be for
further Commission responsibilities and
actions? Are there other ways in which
we can promote a competitive
marketplace through requirements
applicable to equipment that MVPDs
lease, sell, or otherwise provide to their
subscribers? For example, Anne
Arundel and Montgomery Counties,
Maryland in their reply comments
propose that our rules (1) prohibit
service charges for viewing on more
than one device, (2) prohibit service
charge penalties for consumer-owned
devices, (3) prohibit multi-year
contracts based on the use of a
consumer-owned device, (4) ban
‘‘additional outlet’’ fees, (5) prohibit
requirements that consumers lease
equipment, and (6) give consumers the
ability to purchase equipment outright.
Commenters should include a
discussion of the Commission’s
authority to adopt any regulations
proposed.
CableCARD Support and Reporting.
In this section, we seek comment on
whether the CableCARD consumer
support rules set forth in section
76.1205(b) of the Commission’s rules
continue to serve a useful purpose and
should be retained following the D.C.
Circuit’s 2013 decision in EchoStar
Satellite L.L.C. v. FCC, which vacated
two 2003 Commission Orders adopting
the CableCARD standard as the method
that must be used by digital cable
operators in implementing the
separation of security requirement for
navigation devices. We tentatively
conclude that these rules continue to
serve a useful purpose and propose to
retain them in our rules. We seek
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comment on this tentative conclusion.
Alternatively, if commenters contend
that the CableCARD consumer support
rules should be eliminated or modified
in light of EchoStar, commenters should
explain the basis for their contention.
To the extent that we conclude that the
CableCARD consumer support rules
continue to serve a useful purpose, we
seek comment on whether to eliminate
the requirement that the six largest cable
operators submit status reports to the
Commission every 90 days on
CableCARD deployment and support.
In 2005, the Commission adopted a
requirement that the six largest cable
operators submit status reports to the
Commission every 90 days on
CableCARD deployment and support.
The Commission adopted this reporting
requirement to ensure that cable
operators meet their obligations to
deploy and support CableCARDs. In an
effort to ‘‘improve consumers’
experience with retail navigation
devices,’’ the Commission in 2010
imposed specific CableCARD consumer
support requirements on cable
operators. Specifically, these
CableCARD consumer support rules: (1)
Require cable operators to support the
reception of switched digital video
services on retail devices to ensure that
subscribers are able to access the
services for which they pay regardless of
whether they lease or purchase their
devices; (2) prohibit price
discrimination against retail devices to
support a competitive marketplace for
retail devices; (3) require cable operators
to allow self-installation of CableCARDs
where device manufacturers offer
device-specific installation instructions
to make the installation experience for
retail devices comparable to the
experience for leased devices; (4)
require cable operators to provide multistream CableCARDs by default to ensure
that cable operators are providing their
subscribers with current CableCARD
technology; and (5) clarify that
CableCARD device certification rules
are limited to certain technical features
to make it easier for device
manufacturers to get their products to
market.
In 2013, the D.C. Circuit in EchoStar
vacated the two 2003 Orders adopting
the CableCARD standard as the method
that must be used by all MVPDs in
implementing the separation of security
requirement for navigation devices. The
D.C. Circuit concluded that the
Commission lacked the authority under
section 629 to impose encoding rules,
which put a ceiling on the copy
protections that MVPDs can impose, on
satellite carriers. The Commission
argued that those rules were not
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severable from the rest of the rules
adopted in the 2003 Orders (including
the rule that imposes the CableCARD
standard), and therefore the D.C. Circuit
vacated both of the orders.
Subsequently, questions have been
raised as to what effect, if any, the
EchoStar decision has on the continued
validity of the CableCARD consumer
support requirements in Section
76.1205(b) of the Commission’s rules.
We seek comment on whether the
CableCARD consumer support rules set
forth in Section 76.1205(b) continue to
serve a useful purpose after the D.C.
Circuit’s 2013 decision in EchoStar. As
discussed above, the EchoStar decision
vacated the two 2003 Orders that
adopted rules mandating that MVPDs
use the CableCARD standard to support
the separation of security requirement.
The EchoStar decision did not,
however, vacate or even address the
consumer support rules for cable
operators that choose to continue to rely
on the CableCARD standard in order to
comply with the separated security
requirement, which remains in effect.
Accordingly, we believe that the
consumer support rules set forth in
section 76.1205(b) continue to serve a
useful purpose and should be retained.
We seek comment on this belief. Are the
consumer support rules still necessary
to support a competitive market for
retail navigation devices?
Additionally, we seek comment on
whether to eliminate the CableCARD
reporting requirement applicable to the
six largest cable operators. Specifically,
we seek comment on whether the
reporting requirement is still necessary
in light of the CableCARD consumer
support requirements, as well as the
recent repeal of the integration ban. As
explained above, the reporting
requirement was intended to ensure that
cable operators satisfy their obligations
to deploy and support CableCARDs. Are
the consumer support requirements
sufficient to ensure that cable operators
meet these obligations? If so, is there
any reason to retain the reporting
requirement or should it be eliminated?
Initial Regulatory Flexibility Act
Analysis. As required by the Regulatory
Flexibility Act of 1980, as amended
(‘‘RFA’’) the Commission has prepared
this present Initial Regulatory
Flexibility Analysis (‘‘IRFA’’)
concerning the possible significant
economic impact on small entities by
the policies and rules proposed in this
Notice of Proposed Rulemaking
(Notice). Written public comments are
requested on this IRFA. Comments must
be identified as responses to the IRFA
and must be filed by the deadlines for
comments indicated on the first page of
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the Notice. The Commission will send
a copy of the Notice, including this
IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration
(SBA). In addition, the Notice and IRFA
(or summaries thereof) will be
published in the Federal Register.
Need for and Objectives of the
Proposed Rules. In the Notice, the
Commission seeks comment on
proposed rules relating to the
Commission’s obligation under Section
629 of the Communications Act to
assure a commercial market for
equipment that can access multichannel
video programming and other services
offered over multichannel video
programming systems. The NPRM
tentatively concludes that new rules
about multichannel video programming
distributor’s (MVPD’s) provision of
content are needed to further the goals
of Section 629. It proposes such new
rules, relating to the information that
MVPDs must provide to allow
competitive user interfaces, the security
flexibility necessary to protect content,
and the parity requirements necessary to
ensure a level playing field between
MVPD-leased equipment and
competitive methods that consumers
might use to access MVPD service
instead of leasing MVPD equipment.
The Notice also asks about MVPD fees
for devices and the current status of the
Commission’s CableCARD rules, the
existing rules arising from Section 629.
Legal Basis. The authority for the
action proposed in this rulemaking is
contained in sections 1, 4, 303, 303A,
335, 403, 624, 624A, 629, 631, 706, and
713 of the Communications Act of 1934,
as amended, 47 U.S.C. 151, 154, 303,
303a, 335, 403, 544, 544a, 549, 551, 606,
and 613.
Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply. The RFA
directs the Commission to provide a
description of and, where feasible, an
estimate of the number of small entities
that will be affected by the proposed
rules, if adopted. The RFA generally
defines the term ‘‘small entity’’ as
having the same meaning as the terms
‘‘small business,’’ small organization,’’
and ‘‘small government jurisdiction.’’ In
addition, the term ‘‘small business’’ has
the same meaning as the term ‘‘small
business concern’’ under the Small
Business Act. A small business concern
is one which: (1) Is independently
owned and operated; (2) is not
dominant in its field of operation; and
(3) satisfies any additional criteria
established by the SBA.
Wired Telecommunications Carriers.
The North American Industry
Classification System (‘‘NAICS’’) defines
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‘‘Wired Telecommunications Carriers’’
as follows: ‘‘This industry comprises
establishments primarily engaged in
operating and/or providing access to
transmission facilities and infrastructure
that they own and/or lease for the
transmission of voice, data, text, sound,
and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies. Establishments in this
industry use the wired
telecommunications network facilities
that they operate to provide a variety of
services, such as wired telephony
services, including VoIP services; wired
(cable) audio and video programming
distribution; and wired broadband
Internet services. By exception,
establishments providing satellite
television distribution services using
facilities and infrastructure that they
operate are included in this industry.’’
The SBA has developed a small
business size standard for wireline firms
for the broad economic census category
of ‘‘Wired Telecommunications
Carriers.’’ Under this category, a
wireline business is small if it has 1,500
or fewer employees. Census data for
2007 shows that there were 3,188 firms
that operated for the entire year. Of this
total, 3,144 firms had fewer than 1,000
employees, and 44 firms had 1,000 or
more employees. Therefore, under this
size standard, we estimate that the
majority of businesses can be
considered small entities.
Cable Television Distribution
Services. Since 2007, these services
have been defined within the broad
economic census category of Wired
Telecommunications Carriers, which
category is defined above. The SBA has
developed a small business size
standard for this category, which is: All
such businesses having 1,500 or fewer
employees. Census data for 2007 shows
that there were 3,188 firms that operated
for the entire year. Of this total, 3,144
firms had fewer than 1,000 employees,
and 44 firms had 1,000 or more
employees. Therefore, under this size
standard, we estimate that the majority
of businesses can be considered small
entities.
Cable Companies and Systems. The
Commission has developed its own
small business size standards for the
purpose of cable rate regulation. Under
the Commission’s rules, a ‘‘small cable
company’’ is one serving 400,000 or
fewer subscribers nationwide. Industry
data shows that there are currently 660
cable operators. Of this total, all but ten
cable operators nationwide are small
under this size standard. In addition,
under the Commission’s rate regulation
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rules, a ‘‘small system’’ is a cable system
serving 15,000 or fewer subscribers.
Current Commission records show 4,629
cable systems nationwide. Of this total,
4,057 cable systems have less than
20,000 subscribers, and 572 systems
have 20,000 or more subscribers, based
on the same records. Thus, under this
standard, we estimate that most cable
systems are small entities.
Cable System Operators (Telecom Act
Standard). The Communications Act of
1934, as amended, also contains a size
standard for small cable system
operators, which is ‘‘a cable operator
that, directly or through an affiliate,
serves in the aggregate fewer than 1
percent of all subscribers in the United
States and is not affiliated with any
entity or entities whose gross annual
revenues in the aggregate exceed
$250,000,000.’’ There are approximately
54 million cable video subscribers in the
United States today. Accordingly, an
operator serving fewer than 540,000
subscribers shall be deemed a small
operator if its annual revenues, when
combined with the total annual
revenues of all its affiliates, do not
exceed $250 million in the aggregate.
Based on available data, we find that all
but ten incumbent cable operators are
small entities under this size standard.
We note that the Commission neither
requests nor collects information on
whether cable system operators are
affiliated with entities whose gross
annual revenues exceed $250 million.
Although it seems certain that some of
these cable system operators are
affiliated with entities whose gross
annual revenues exceed $250,000,000,
we are unable at this time to estimate
with greater precision the number of
cable system operators that would
qualify as small cable operators under
the definition in the Communications
Act.
Direct Broadcast Satellite (DBS)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic ‘‘dish’’
antenna at the subscriber’s location.
DBS, by exception, is now included in
the SBA’s broad economic census
category, Wired Telecommunications
Carriers, which was developed for small
wireline businesses. Under this
category, the SBA deems a wireline
business to be small if it has 1,500 or
fewer employees. Census data for 2007
shows that there were 3,188 firms that
operated for that entire year. Of this
total, 2,940 firms had fewer than 100
employees, and 248 firms had 100 or
more employees. Therefore, under this
size standard, the majority of such
businesses can be considered small
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14049
entities. However, the data we have
available as a basis for estimating the
number of such small entities were
gathered under a superseded SBA small
business size standard formerly titled
‘‘Cable and Other Program
Distribution.’’ As of 2002, the SBA
defined a small Cable and Other
Program Distribution provider as one
with $12.5 million or less in annual
receipts. Currently, only two entities
provide DBS service, which requires a
great investment of capital for operation:
DIRECTV and DISH Network. Each
currently offers subscription services.
DIRECTV and DISH Network each
report annual revenues that are in
excess of the threshold for a small
business. Because DBS service requires
significant capital, we believe it is
unlikely that a small entity as defined
under the superseded SBA size standard
would have the financial wherewithal to
become a DBS service provider.
Description of Projected Reporting,
Recordkeeping and Other Compliance
Requirements. The Notice proposes the
following new or revised reporting or
recordkeeping requirements. It proposes
that MVPDs offer three flows of
information using any published,
transparent format that conforms to
specifications set by open standards
bodies, to permit the development of
competitive navigation devices with
competitive user interfaces. It proposes
that the flows of information not be
made available to a device absent
verification that the device will honor
copying and recording limits, privacy,
Emergency Alert System messages, the
Accessibility Rules in Part 79 of the
Commission’s Rules, parental control
information, and children’s
programming advertising limits.
It further proposes that each MVPD
use at least one content protection
system that is licensed on a reasonable
and non-discriminatory basis by an
organization that is not affiliated with
MVPDs; that at least one such content
protection system make available the
entirety of the MVPD’s service; and that
the MVPD ensure that, on any device for
which it provides an application, such
a content protection system is available
to competitors wishing to provide the
same level of service. It also proposes a
bar on Entitlement data discrimination
because of the affiliation of otherwise
proper devices. The Notice proposes to
require each MVPD that offers its own
application on unaffiliated devices
without the need for MVPD-specific
equipment to also offer the three
information flows to unaffiliated
applications without the need for
MVPD-specific equipment.
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Finally, the Notice proposes to require
MVPDs to separately state the fees
charged to lease devices on consumers’
bills, and, in a possible reduction of
reporting requirements, seeks comment
on discontinuing a requirement that the
six largest cable operators report to the
Commission about their support for
CableCARD.
Steps Taken To Minimize Significant
Impact on Small Entities, and
Significant Alternatives Considered. The
RFA requires an agency to describe any
significant alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.
The Notice proposes rules intended to
assure a commercial market for
competitive Navigation Devices. The
Commission’s has a statutory obligation
to do so, and has concluded that it
cannot do so if competitive Navigation
Devices are tied to specific MVPDs. As
a result, the compliance requirements
must be the same for all MVPDs, large
and small. The rules have been
proposed in terms to minimize
economic impact on small entities. The
proposed rules allow flexibility for
MVPDs while still assuring device
manufacturers they can build to a
manageable number of standards, and
assuring consumers that they only need
a single device. That flexibility arises
from the fact that the proposed rules
establish performance standards, not
design standards. Although the
compliance requirements must be the
same in order to comply with our
statutory mandate, the requirements
themselves are clear and simple.
Because they would be able, under the
proposed rules, to rely on open
standards for information flows and
RAND licensable security, small MVPDs
would not have to engage in complex
compliance efforts. The only reporting
requirements are related to fees for
device leases, which cannot be further
simplified for small entities. Finally,
although the rules do not contemplate
exemptions for small entities, the
proposed rule requiring ‘‘boxless’
provision of the three information flows
applies only to MVPDs with the
technological sophistication to offer
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‘‘boxless’’ programming to their own
devices. Thus, smaller MVPDs that are
not providing this service will not be
required to implement ‘‘boxless’’
information flows by operation of the
proposed rule.
Federal Rules Which Duplicate,
Overlap, or Conflict With the
Commission’s Proposals. None.
Authority. This Notice of Proposed
Rulemaking is issued pursuant to
authority contained in Sections 4(i), 4(j),
303(r), 325, 403, 616, 628, 629, 634 and
713 of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), 154(j),
303(r), 325, 403, 536, 548, 549, 554, and
613.
Ex Parte Rules. The proceeding
initiated by this Notice of Proposed
Rulemaking shall be treated as ‘‘permitbut-disclose’’ proceedings in accordance
with the Commission’s ex parte rules.
Persons making ex parte presentations
must file a copy of any written
presentation or a memorandum
summarizing any oral presentation
within two business days after the
presentation (unless a different deadline
applicable to the Sunshine period
applies). Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentation must: (1) List all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made; and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda, or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with rule
1.1206(b). In proceedings governed by
rule 1.49(f) or for which the
Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
in this proceeding should familiarize
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themselves with the Commission’s ex
parte rules.
Filing Requirements. Pursuant to
sections 1.415 and 1.419 of the
Commission’s rules,1 interested parties
may file comments and reply comments
on or before the dates indicated on the
first page of this document. Comments
may be filed using the Commission’s
Electronic Comment Filing System
(‘‘ECFS’’).2
Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://fjallfoss.fcc.
gov/ecfs2/.
Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing. If more than one
docket or rulemaking number appears in
the caption of this proceeding, filers
must submit two additional copies for
each additional docket or rulemaking
number.
Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
All hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th St. SW., Room TW–A325,
Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes and boxes must be disposed
of before entering the building.
Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 445 12th Street SW.,
Washington, DC 20554.
Availability of Documents. Comments
and reply comments will be available
for public inspection during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street SW., CY–
A257, Washington, DC 20554. These
documents will also be available via
ECFS. Documents will be available
electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat.
People with Disabilities. To request
materials in accessible formats for
people with disabilities (braille, large
1 See
id. §§ 1.415, 1.419.
Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998).
2 See
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print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the FCC’s Consumer and Governmental
Affairs Bureau at (202) 418–0530
(voice), (202) 418–0432 (TTY).
Additional Information. For
additional information on this
proceeding, contact Brendan Murray of
the Media Bureau, Policy Division, (202)
418–1573 or Lyle Elder of the Media
Bureau, Policy Division, (202) 418–
2365.
Regulatory Flexibility Analysis. As
required by the Regulatory Flexibility
Act of 1980, see 5 U.S.C. 604, the
Commission has prepared an Initial
Regulatory Flexibility Analysis (IRFA)
of the possible significant economic
impact on small entities of the policies
and rules addressed in this document.
The IRFA is set forth in Appendix B.
Written public comments are requested
in the IRFA. These comments must be
filed in accordance with the same filing
deadlines as comments filed in response
to this Notice of Proposed Rulemaking
as set forth on the first page of this
document, and have a separate and
distinct heading designating them as
responses to the IRFA.
Initial Paperwork Reduction Act
Analysis. This Notice of Proposed
Rulemaking seeks comment on a
potential new or revised information
collection requirement. If the
Commission adopts any new or revised
information collection requirement, the
Commission will publish a separate
notice in the Federal Register inviting
the public to comment on the
requirement, as required by the
Paperwork Reduction Act of 1995,
Public Law 104–13 (44 U.S.C. 3501–
3520). In addition, pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–198, 44 U.S.C.
3506(c)(4), the Commission seeks
specific comment on how it might
‘‘further reduce the information
collection burden for small business
concerns with fewer than 25
employees.’’
Ordering Clauses. Accordingly, it is
ordered, pursuant to the authority
contained in Sections 4(i), 4(j), 303,
303A, 335, 403, 624, 624A, 629, 631,
706, and 713 of the Communications
Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), 303, 303a, 335, 403, 544,
544a, 549, 551, 606, and 613, that this
Notice of Proposed Rulemaking and
Memorandum Opinion and Order is
adopted.
It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice of Proposed Rulemaking and
Memorandum Opinion and Order
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Jkt 238001
including the Regulatory Flexibility
Analysis, to the Chief Counsel for
Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 76
Administrative practice and
procedure; Cable television; Equal
employment opportunity; Political
candidates; Reporting and
recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
part 76 as follows:
*
*
*
*
*
PART 76—MULTICHANNEL VIDEO
AND CABLE TELEVISION SERVICE
1. The authority citation for part 76
continues to read as follows:
■
Authority: 47 U.S.C. 151, 152, 153, 154,
301, 302, 302a, 303, 303a, 307, 308, 309, 312,
315, 317, 325, 338, 339, 340, 341, 503, 521,
522, 531, 532, 534, 535, 536, 537, 543, 544,
544a, 545, 548, 549, 552, 554, 556, 558, 560,
561, 571, 572, 573.
2. Amend § 76.1200 by revising
paragraphs (a) through (e) and adding
new paragraphs (f) through (m)to read as
follows:
■
§ 76.1200
Definitions.
(a) Affiliate. A person or entity that
(directly or indirectly) owns or controls,
is owned or controlled by, or is under
common ownership or control with,
another person, as defined in the notes
accompanying § 76.501.
(b) Certificate. A document that
certifies that a Navigation Device will
honor privacy, Emergency Alert System
messages, the Accessibility Rules in part
79 of this Chapter, parental control
information, and children’s
programming advertising limits.
(c) Compliant Security System. A
conditional access system or link
protection technology that: (1) Is
licensable on reasonable and
nondiscriminatory terms; (2) relies on a
Trust Authority not substantially
controlled by any multichannel video
programming distributor or group of
multichannel video programming
distributors; and (3) is licensable on
terms that require licensees to comply
with robustness and compliance rules.
(d) Conditional access. The
mechanisms that provide for selective
access and denial of specific services
and make use of signal security that can
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14051
prevent a signal from being received
except by authorized users.
(e) Content Delivery Data. Data that
contains the Navigable Service and any
information necessary to make the
Navigable Service accessible to persons
with disabilities under part 79 of this
Title.
(f) Entitlement Data. Information
about (1) which Navigable Services a
subscriber has the rights to access and
(2) the rights the subscriber has to use
those Navigable Services. Entitlement
data shall reflect identical rights that a
consumer has on Navigation Devices
that the multichannel video
programming distributor sells or leases
to its subscribers.
(g) Multichannel video programming
distributor. A person such as, but not
limited to, a cable operator, a BRS/EBS
provider, a direct broadcast satellite
service, or a television receive-only
satellite program distributor, who owns
or operates a multichannel video
programming system.
(h) Multichannel video programming
system. A distribution system that
makes available for purchase, by
customers or subscribers, multiple
channels of video programming other
than an open video system as defined by
§ 76.1500(a). Such systems include, but
are not limited to, cable television
systems, BRS/EBS systems, direct
broadcast satellite systems, other
systems for providing direct-to-home
multichannel video programming via
satellite, and satellite master antenna
systems.
(i) Navigable Service. A multichannel
video programmer’s video programming
and Emergency Alert System messages
(see 47 CFR part 11).
(j) Navigation Devices. Devices such
as converter boxes, interactive
communications equipment, and other
equipment used by consumers to access
multichannel video programming and
other services offered over multichannel
video programming systems.
(k) Open Standards Body. A standards
body (1) whose membership is open to
consumer electronics, multichannel
video programming distributors, content
companies, application developers, and
consumer interest organizations, (2) that
has a fair balance of interested members,
(3) that has a published set of
procedures to assure due process, (4)
that has a published appeals process,
and (5) that strives to set consensus
standards.
(l) Service Discovery Data.
Information about available Navigable
Services and any instructions necessary
to request a Navigable Service.
(m) Trust Authority. An entity that
issues certificates and keys used by a
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Navigation Device to access Navigable
Services that are secured by a given
Compliant Security System.
■ 3. Revise § 76.1206 to read as follows:
distributor affords to its own
application.
[FR Doc. 2016–05763 Filed 3–15–16; 8:45 am]
BILLING CODE 6712–01–P
§ 76.1206. Equipment sale or lease charge
subsidy prohibition.
DEPARTMENT OF TRANSPORTATION
§ 76.1211. Information Necessary to
Assure a Commercial Market for Navigation
Devices.
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After January 1, 2017, multichannel
video programming distributors shall
state the price for Navigation Devices
separately on consumer bills.
■ 4. Add § 76.1211 to read as follows:
[Docket No. FMCSA–2016–0051]
Federal Motor Carrier Safety
Administration
49 CFR Parts 383 and 384
(a) Each multichannel video
programming distributor shall make
available to each Navigation Device that
has a Certificate the Service Discovery
Data, Entitlement Data, and Content
Delivery Data for all Navigable Services
in published, transparent formats that
conform to specifications set by Open
Standards Bodies in a manner that does
not restrict competitive user interfaces
and features.
(b) If a multichannel video
programming distributor makes
available an application that allows
access to multichannel video
programming without the technological
need for additional multichannel video
programming distributor-specific
equipment, then it shall make Service
Discovery Data, Entitlement Data, and
Content Delivery Data available to
competitive Navigation Devices without
the need for multichannel video
programming distributor-specific
equipment.
(c) Each multichannel video
programming distributor shall support
at least one Compliant Security System.
(1) At least one supported Compliant
Security System shall enable access to
all resolutions and formats of the
multichannel video programming
distributor’s Navigable Services with the
same Entitlement Data to use those
Navigable Services as the multichannel
video programming distributor affords
Navigation Devices that it leases, sells,
or otherwise provides to its subscribers.
(2) Entitlement Data shall not
discriminate on the basis of the
affiliation of the Navigation Device.
(d) On any device on which a
multichannel video programming
distributor makes available an
application to access multichannel
video programming, the multichannel
video programming distributor must
support at least one Compliant Security
System that offers access to the same
Navigable Services with the same rights
to use those Navigable Services as the
multichannel video programming
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RIN 2126–AB68
Commercial Driver’s License
Requirements of the Moving Ahead for
Progress in the 21st Century Act and
the Military Commercial Driver’s
License Act of 2012
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM), request for comments.
AGENCY:
FMCSA proposes
amendments to its Commercial Driver’s
License (CDL) regulations that would
ease the transition of military personnel
into civilian careers in the truck and bus
industry by simplifying the process of
getting a commercial learner’s permit
(CLP) or CDL. This rulemaking would
extend the time period for applying for
a skills test waiver from 90 days to 1
year after leaving a military position
requiring the operation of a commercial
motor vehicle (CMV). This rulemaking
also would allow States to accept
applications and administer the written
and skills tests for a CLP or CDL from
active duty military personnel who are
stationed in that State. States that
choose to accept such applications
would be required to transmit the test
results electronically to the State of
domicile of the military personnel. The
State of domicile would be required to
issue the CDL or CLP on the basis of
those results.
DATES: Comments on this notice must be
received on or before May 16, 2016.
ADDRESSES: You may submit comments
identified by Docket Number FMCSA–
2016–0051 using any of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 1200
New Jersey Avenue SE., West Building,
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery or Courier: West
Building, Ground Floor, Room W12–
SUMMARY:
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140, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
• Fax: 202–493–2251.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
instructions on submitting comments,
including collection of information
comments for the Office of Information
and Regulatory Affairs, OMB.
FOR FURTHER INFORMATION CONTACT: Mr.
Selden Fritschner, CDL Division,
Federal Motor Carrier Safety
Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001, by email at Selden.fritschner@
dot.gov, or by telephone at 202–366–
0677. If you have questions on viewing
or submitting material to the docket,
contact Docket Services, telephone (202)
366–9826.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Section 32308 of the Moving Ahead
for Progress in the 21st Century Act
(MAP–21) [Pub. L. 112–141, 126 Stat.
405, July 6, 2012] required FMCSA to
undertake a study to assess Federal and
State regulatory, economic, and
administrative challenges in obtaining
CDLs faced by members and former
members of the Armed Forces, who
operated qualifying motor vehicles
during their service. As a result of this
study, FMCSA provided a report to
Congress titled ‘‘Program to Assist
Veterans to Acquire Commercial
Driver’s Licenses’’ (November 2013)
(available in the docket for this
rulemaking). The report contained six
recommended actions, and elements of
this report comprise the main parts of
this rulemaking. These actions are:
(1) Revise 49 CFR 383.77(b)(1) governing
the Military Skills Test Waiver to extend the
time period to apply for a waiver from 90
days to 1 year following separation from
military service
(2) Revise 49 CFR 383.77(b)(3) to add the
option to qualify for a CDL based on training
and experience in an MOC [Military
Occupational Specialty] dedicated to military
CMV operation
(3) Revise the definitions of CDL and CLP
in 49 CFR 383.5 and 49 CFR 384.212 and
related provisions governing the domicile
requirement, in order to implement the
statutory waiver enacted by The Military
Commercial Driver’s License Act of 2012 . . .
This NPRM would ease the current
burdens on military personnel applying
for CLPs and CDLs issued by a State
Driver Licensing Agency (SDLA) in
accordance with 49 CFR parts 383 and
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Agencies
[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Proposed Rules]
[Pages 14033-14052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05763]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 16-42; CS Docket No. 97-80; FCC 16-18]
Expanding Consumers' Video Navigation Choices; Commercial
Availability of Navigation Devices
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, we propose new rules to empower consumers to
choose how they wish to access the multichannel video programming to
which they subscribe, and promote innovation in the display, selection,
and use of this programming and of other video programming available to
consumers. We take steps to fulfill our obligation under section 629 of
the Communications Act to assure a commercial market for devices that
can access multichannel video programming and other services offered
over multichannel video programming systems. We propose rules intended
to allow consumer electronics manufacturers, innovators, and other
developers to build devices or software solutions that can navigate the
universe of multichannel video programming with a competitive user
interface. We also seek comment on outstanding issues related to our
CableCARD rules.
DATES: Submit comments on or before April 15, 2016. Submit reply
comments on or before May 16, 2016. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before May 16, 2016.
ADDRESSES: In addition to filing comments with the Secretary, a copy of
any comments on the Paperwork Reduction Act (PRA) information
collection requirements contained herein should be submitted to the
Federal Communications Commission via email to PRA@fcc.gov and to
Nicholas A. Fraser, Office of Management and Budget, via email to
Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Brendan Murray, Brendan.Murray@fcc.gov, of the
Media Bureau, Policy Division, (202) 418-1573. Contact Cathy Williams,
Cathy.Williams@fcc.gov, (202) 418-2918 concerning PRA matters.
SUPPLEMENTARY INFORMATION: Congress adopted section 629 of the
Communications Act in 1996, and since then each era of technology has
brought unique challenges to achieving Section 629's goals. When
Congress first directed the Commission to adopt regulations to assure a
commercial market for devices that can access multichannel video
programming, the manner in which MVPDs offered their services made it
difficult to achieve the statutory purpose. Cable operators used widely
varying security technologies, and the best standard available to the
Commission was the hardware-based CableCARD standard--which the cable
and consumer electronics industries jointly developed--that worked only
with one-way cable services. In 2010, the Commission sought comment on
a new approach that would work with two-way services, but still only a
hardware solution would work because software-based security was not
sophisticated enough to meet content companies' content protection
demands. This concept, called ``AllVid,'' would have allowed
electronics manufacturers to offer retail devices that could access
multichannel video programming, but would have required all operators
to put a new device in the home between the network and the retail or
leased set-top box. Now, as MVPDs move to Internet Protocol (``IP'') to
deliver their services and to move content throughout the home, those
difficulties are gone. Today, MVPDs provide ``control channel'' data
that contains (1) the channels and programs they carry, (2) whether a
consumer has the right to access each of those channels and programs,
and (3) the usage rights that a consumer has with respect to those
channels and programs. Many MVPDs already use Internet Protocol
(``IP'') to provide this control channel data. Moreover, most MVPDs
have coalesced around a few standards and specifications for delivery
of the video content itself, and many have progressed to sending
content throughout the home network via IP. This standardization and
increasing reliance on IP allows for software solutions that, with
ground rules to ensure a necessary degree of convergence, will make it
easier to finally fulfill the purpose of Section 629.
The regulatory and technological path to this proceeding reflects a
long history. It begins with the Telecommunications Act of 1996, when
Congress added Section 629 to the Communications Act. Section 629
directs the Commission to adopt regulations to assure the commercial
availability of devices that consumers use to access multichannel video
programming and other services offered over multichannel video
programming networks. Section 629 goes on to state that these devices
should be available from ``manufacturers, retailers, and other vendors
not affiliated with any multichannel video programming distributor.''
It also prohibits the Commission from adopting regulations that would
``jeopardize security of multichannel video programming and other
services offered over multichannel video programming systems, or impede
the legal rights of a provider of such services to prevent theft of
service.'' In enacting the section, Congress pointed to the vigorous
retail market for customer premises equipment used with the telephone
network and sought to create a similarly vigorous market for devices
used with services offered over MVPDs' networks.
The Commission first adopted rules to implement Section 629 in
1998, just as ``the enormous technological change resulting from the
movement from analog to digital communications [was] underway.'' The
Commission set fundamental ground rules for consumer-owned devices and
access to services offered over multichannel video programming systems.
The rules established (1) manufacturers' right to build, and consumers'
right to attach, any non-harmful device to an MVPD network, (2) a
requirement that MVPDs provide technical interface information so
manufacturers, retailers, and subscribers could determine device
compatibility, (3) a requirement that MVPDs make available a separate
security element that would allow a set-top box built by an
unaffiliated manufacturer to access encrypted multichannel video
programming without jeopardizing security of programming or impeding
the legal rights of MVPDs to prevent theft of service, and (4) the
integration ban, which required MVPDs to commonly
[[Page 14034]]
rely on the separated security in the devices that they lease to
subscribers. The Commission did not initially impose a specific
technical standard to achieve these rules, but instead adopted rules
that relied ``heavily on the representations of the various interests
involved that they will agree on relevant specifications, interfaces,
and standards in a timely fashion.''
In December 2002, the cable and consumer electronics industries
adopted a Memorandum of Understanding regarding a one-way plug-and-play
``CableCARD'' compatibility standard for digital cable. In October
2003, the Commission adopted the CableCARD standard as part of the
Commission's rules, and consumer electronics manufacturers brought
unidirectional CableCARD-compatible devices to market less than a year
later. At least six million (and by one report, over 15 million)
CableCARD devices were built and shipped, but the nine largest
incumbent cable operators have deployed only 618,000 CableCARDs for use
in consumer-owned devices. These rules drove innovations that consumers
value greatly today: High-definition digital video recording,
competitive user interfaces that provided more program information to
viewers, the ability to set recordings remotely, the incorporation of
Internet content with cable content, and automatic commercial skipping
on cable content. Throughout the mid-to-late 2000s, cable operators
increasingly transitioned their systems to digital and introduced
interactive video services such as video-on-demand and content delivery
methods such as switched digital video. The Commission's CableCARD
rules and the Memorandum of Understanding did not prescribe methods for
retail devices to access those interactive services, and therefore
retail CableCARD devices could not access cable video-on-demand
services. Moreover, cable operators generally offered poor CableCARD
support, which made it much more difficult for consumers to set up a
retail device than a leased device.
In 2010, the Commission took steps to remedy problems with the
CableCARD regime. The Commission adopted additional CableCARD-related
rules to improve cable operator support for retail CableCARD devices.
The Commission also sought comment on a successor technology in the
form of a Commission-designed, standardized converter box that would be
designed to allow ``any electronics manufacturer to offer smart video
devices at retail that can be used with the services of any MVPD and
without the need to coordinate or negotiate with MVPDs.'' The
Commission sought comment on this AllVid concept in a Notice of Inquiry
but ultimately decided not to propose rules to mandate it.
In late 2014, Congress passed STELAR. Section 106 of that law had
two main purposes: First, it eliminated the integration ban as of
December 4, 2015, and second, it directed the Chairman of the
Commission to appoint an advisory committee of technical experts to
recommend a system for downloadable security that could advance the
goals of section 629. The Chairman appointed 19 members to the
Downloadable Security Technical Advisory Committee (``DSTAC''), and the
committee submitted its report to the Commission on August 28, 2015.
The DSTAC Report gave an account of the increasing number of devices on
which consumers are viewing video content, including laptops, tablets,
phones, and other ``smart,'' Internet-connected devices. The DSTAC
Report pointed to two main reasons for this shift: (1) Software-based
applications have made it easier for content providers to tailor their
services to run on different hardware, and (2) there are an increasing
number of software-based content protection systems that copyright
holders are comfortable relying on to protect their content. The Media
Bureau released a Public Notice seeking comment on the DSTAC Report on
August 30, 2015. The DSTAC Report and comments that we received in
response to it underlie and inform our Notice of Proposed Rulemaking.
The DSTAC Report offered two proposals regarding the non-security
elements and two proposals regarding the security elements of a system
that could implement section 629. For the non-security elements, the
DSTAC Report presented both an MVPD-supported proposal that is based on
proprietary applications and would allow MVPDs to retain control of the
consumer experience, and a consumer electronics-supported proposal that
is based on standard protocols that would let a competing device or
application offer a consumer experience other than the one the MVPD
offers. With respect to security, the DSTAC Report presented both an
MVPD-supported proposal based on digital rights management (similar to
what Internet-based video services use to protect their video content),
and a consumer electronics-supported proposal based on link protection
(similar to how content is protected as it travels from a Blu-ray
player to a television set).
In this Notice of Proposed Rulemaking, we propose rules that are
intended to assure a competitive market for equipment, including
software, that can access multichannel video programming. A recent news
report on this topic summarized the issue succinctly: ``some consumer
advocates wonder why, if you do want a set-top box, you can't just buy
one as easily as you'd buy a cell phone or TV for that matter.'' Before
MVPDs transitioned to digital service, it was easy for consumers to buy
televisions that received cable service without the need for a set-top
box. In 1996, Congress recognized that we were on the cusp of a digital
world with diverging system architectures. To address this, Congress
adopted Section 629, and the Commission implemented that section of the
statute by separating the parts of cable system architectures that were
not consistent among systems into a module called a CableCARD that
cable operators could design to work with their system-specific
technology. This module converted system-specific aspects into a
standardized interface; this standardized interface allowed a
manufacturer to build a single device that could work with cable
systems nationwide, despite their divergent technologies. Today, the
world is converging again, this time around IP to provide control
channel data, in some cases also using IP for content delivery over
MVPD systems, and in many cases using IP for content delivery
throughout the home. Standards will allow us to develop, and MVPDs to
follow, ground rules about compatibility that are technology-neutral:
The rules will allow MVPDs to upgrade their networks freely and any
changes that a navigation device needs to conform to those changes can
be supplied via software download rather than upgrading consumers'
hardware. The ground rules we propose in this Notice of Proposed
Rulemaking are designed to let MVPD subscribers watch what they pay for
wherever they want, however they want, and whenever they want, and pay
less money to do so, making it as easy to buy an innovative means of
accessing multichannel video programming (such as an app, smart TV, or
set-top box) as it is to buy a cell phone or TV.
As discussed below, our proposed rules are based on three
fundamental points. First, the market for navigation devices is not
competitive. Second, the few successes that developed in the CableCARD
regime demonstrate that competitive navigation--that is, competition in
the user interface and complementary features--is essential to achieve
the goals of Section 629. Third, entities that build competitive
navigation devices, including
[[Page 14035]]
applications, need to be able to build those devices without seeking
permission from MVPDs, because MVPDs offer products that directly
compete with navigation devices and therefore have an incentive to
withhold permission or constrain innovation, which would frustrate
Section 629's goal of assuring a commercial market for navigation
devices.
The Need for Rules. Today, consumers have few alternatives to
leasing set-top boxes from their MVPDs, and the vast majority of MVPD
subscribers lease boxes from their MVPD. In July 2015, Senators Ed
Markey and Richard Blumenthal reported statistics that they gathered
from a survey of large MVPDs: ``approximately 99 percent of customers
rent[ ] their set-top box directly from their pay-TV provider, [and]
the set-top box rental market may be worth more than $19.5 billion per
year, with the average American household spending more than $231 per
year on set-top box rental fees.'' There is evidence that increasingly
consumers are able to access video service through proprietary MVPD
applications as well. According to NCTA, consumers have downloaded MVPD
Android and iOS applications more than 56 million times, more than 460
million IP-enabled devices support one or more MVPD applications, and
66 percent of them support applications from all of the top-10 MVPDs.
These statistics show, however, that almost all consumers have one
source for access to the multichannel video programming to which they
subscribe: The leased set-top box, or the MVPD-provided application.
Therefore, we tentatively conclude that the market for navigation
devices is not competitive, and that we should adopt new regulations to
further Section 629. We invite comment on this tentative conclusion.
Certain MVPD commenters argue that the market for devices is
competitive and that we need not adopt any new regulations to achieve
Section 629's directive. They argue that the popularity of streaming
devices such as Amazon Fire TV, AppleTV, Chromecast, Roku, assorted
video game systems, and mobile devices that can access over-the-top
services such as Netflix, Amazon Instant Streaming, and Hulu, shows
that Congress's goals in section 629 have been met. We disagree. With
certain limited exceptions, it appears that those devices are not
``used by consumers to access multichannel video programming,'' and are
even more rarely used as the sole means of accessing MVPDs'
programming. We seek comment on this point. Which MVPDs allow their
subscribers to use these devices as their sole means of accessing
multichannel video programming? We seek specific numbers from MVPDs on
the number of and percentage of their subscribers who use such devices
as their sole means of accessing multichannel video programming without
any MVPD-owned equipment in the subscriber's home. How do these numbers
compare to other commercial markets for consumer electronics?
MVPDs may have several incentives for maintaining control over the
user interface through which consumers access their multichannel video
programming service, but for the reasons we provide below, we believe
that the Act requires competitive navigation that would allow third
parties to develop innovative ways to access multichannel video
programming. We seek comment on those incentives. For example, how do
MVPDs profit from their control of the user interface? Do MVPDs track
consumer viewing habits, and if so, do they profit in any way as a
result of that tracking (for example, by using the information to sell
advertising or selling the information to ratings analytics companies)?
What are the profit margins for selling that data? How long does a
typical consumer lease a MVPD set-top box before it is replaced? What
are MVPDs' profit margins on set-top boxes? Do MVPDs leverage their
user interfaces to sell other services offered over multichannel video
programming systems, e.g. home security? Do MVPDs offer integrated
search across their multichannel video programming and other
unaffiliated video services, and if not why not?
In addition, in today's world a retail navigation device developer
must negotiate with MVPDs to get permission to provide access to the
MVPD's multichannel video programming, on the MVPD's terms. These
business-to-business arrangements are a step in the right direction for
consumers because the arrangements have increased the universe of
devices they can use to receive service. The arrangements have not
assured a competitive retail market for devices from unaffiliated
sources as required by section 629 because they do not always provide
access to all of the programming that a subscriber pays to access, and
may limit features like recording. In other words, these business-to-
business arrangements--typically in the form of proprietary apps--do
not offer consumers viable substitutes to a full-featured, leased set-
top box. Moreover, these relationships are purely at the discretion of
the MVPD and, to date, have only provided access to the MVPD's user
interface rather than that of the competitive device.
Some argue that these business-to-business deals are essential to
ensure that the few independent, diverse programmers that currently
exist can continue to survive because they ensure that those
programmers can rely on the channel placement and advertising
agreements that they have contracted for with the MVPD. We disagree
with this assertion, and believe that competition in interfaces, menus,
search functions, and improved over-the-top integration will make it
easier for consumers to find and watch minority and special interest
programming. In addition, our goal is to preserve the contractual
arrangements between programmers and MVPDs, while creating additional
opportunities for programmers, who may not have an arrangement with an
MVPD, to reach consumers. We seek comment on this analysis.
We also seek specific comment on the process that an MVPD uses to
decide whether to allow such a device to access its services. Have
retail navigation device developers asked MVPDs to develop applications
for their devices and been denied? Have MVPDs asked navigation device
developers to carry their applications and been denied? Do programmers
prohibit MVPDs from displaying their programming on certain devices? If
so, what are the terms of those prohibitions? Should the Commission ban
such terms to assure the commercial availability of devices that can
access multichannel video programming, and under what authority? Are
``premium features and functions'' of devices such as televisions and
recording devices limited due to ``cable scrambling, encoding, or
encryption technologies?'' If so, could we adopt the rules we propose
below pursuant to our authority under Section 624A of the Act?
As noted above, it appears that consumers have downloaded
proprietary MVPD applications many times; we seek comment on whether
consumers actually use those applications to access multichannel video
programming. Section 629 directs us to adopt regulations to assure the
commercial availability of ``equipment used by consumers to access
multichannel video programming.'' MVPDs argue that their proprietary
applications are used by consumers to access multichannel video
programming; to better evaluate this argument, we seek further comment
on usage rates of those proprietary applications. What percentage of
consumers use MVPD applications to view programming one month after
[[Page 14036]]
downloading an application? How many hours per month, on average, does
a consumer use an MVPD application to view programming, compared to
consumers' use of leased boxes? How many MVPDs make their full channel
lineups available via applications? Do any MVPDs allow consumers to
access multichannel video programming, beyond unencrypted signals,
without leasing or purchasing some piece of MVPD equipment? How many
consumers that lease a set-top box also use an MVPD application? How
many consumers view multichannel video programming only via a
proprietary MVPD application, without leasing a box? Are proprietary
MVPD applications available on all platforms and devices? Or do MVPDs
enter into agreements with a limited number of manufacturers or
operating system vendors?
Section 629 and DBS Providers. In the First Plug and Play Report
and Order, the Commission exempted DBS providers from our foundational
separation of security requirement because ``customer ownership of
satellite earth stations receivers and signal decoding equipment has
been the norm in the DBS field.'' This meant that DBS was also exempt
from most of the rules that the Commission adopted in the Second Plug
and Play Order. Unfortunately, in the intervening years the market did
not evolve as we expected; in fact, from a navigation device
perspective, it appears that the market for devices that can access DBS
multichannel video programming has devolved to one that relies almost
exclusively on equipment leased from the DBS provider. Accordingly, to
implement the requirements of section 629 fully, we tentatively
conclude that any regulations we adopt should apply to DBS. We seek
comment on this tentative conclusion. We also seek comment on the
availability of DBS equipment at retail. Has the state of the
marketplace changed since 1998, when the Commission had observed an
``evolving'' competitive market for DBS equipment and, if so, to what
extent? In addition to our authority under section 629, we seek comment
on our authority under section 335 to adopt any of the rules we propose
below or any other rules related to competition in the market for
devices that can access DBS multichannel video programming, which would
serve the public interest. Finally, we recognize the ``weirdness of
satellite'' that the DSTAC emphasized in this context because the DBS
systems cannot assume that bidirectional communication is available in
all cases, and accordingly we seek comment on differences in DBS
delivery or system architecture that should inform our proposed rules
set forth below.
Authority. We tentatively conclude that the Commission has legal
authority to implement our proposed rules. Section 629 of the Act,
entitled ``Competitive Availability of Navigation Devices,'' directs
the Commission to ``adopt regulations to assure the commercial
availability . . . of converter boxes, interactive communications
equipment, and other equipment used by consumers to access multichannel
video programming and other services offered over multichannel video
programming systems, from manufacturers, retailers, and other vendors
not affiliated with any multichannel video programming distributor.''
We propose to interpret the terms ``manufacturers, retailers, and other
vendors'' broadly to include all hardware manufacturers, software
developers, application designers, system integrators, and other such
entities that are not affiliated with any MVPD and who are involved in
the development of navigation devices or whose products enable
consumers to access multichannel video programming over any such
device. We believe a broad interpretation is necessary to ensure that
these third parties are provided the information they need from MVPDs
to facilitate the commercial development of competing navigation
technologies in order to fulfill the goals of section 629.
The Act does not define the terms ``navigation device'' or
``interactive communications equipment, and other equipment,'' but we
believe that Congress intended the terms to be far broader than
conventional cable boxes or other hardware alone; Section 629 is
plainly written to cover any equipment used by consumers to access
multichannel video programming and other services, and software
features have long been essential elements of such equipment.
Exercising our authority to interpret ambiguous terms in the
Communications Act, we tentatively conclude that these terms include
both the hardware and software (such as applications) employed in such
devices that allow consumers to access multichannel video programming
and other services offered over multichannel video programming systems.
We believe this interpretation best serves the intent of Congress as
reflected in the legislative history, which directs, among other
things, that we ``should take cognizance of the current state of the
marketplace.'' In today's marketplace, ``navigation devices''--i.e.,
interactive communications equipment and other equipment--include both
hardware and software technologies. Certain functions can be performed
interchangeably by either hardware, software, or a combination of both.
Congress recognized this in the STELAR, which called for a study of
downloadable software approaches to security issues previously
performed in hardware. To fully and effectively implement Section 629
as Congress intended, we propose to interpret these terms to cover both
the hardware and software aspects of navigation equipment. This is
consistent with our interpretation of other sections of the Act that
use the term ``equipment'', which we have interpreted to include both
hardware and software. The Commission derived its definition of the
term ``navigation devices'' in our current rules from the text of
section 629, and we propose to interpret that term consistent with both
the language and intent of the statute, as described above.
We interpret the phrase ``manufacturers, retailers, and other
vendors not affiliated with any multichannel video programming
distributor'' in section 629 to mean broadly ``entities independent of
MVPDs,'' such that our rules must ensure the availability of Navigation
Devices from entities that have no business relationship with any MVPD
for purposes of providing the three Information Flows that we discuss
below. We believe that this interpretation best aligns with
Congressional intent, as reflected in the legislative history of the
Telecommunications Act of 1996. Namely, the House Report states that
the statute was intended to encourage the availability of equipment
from a ``variety of sources'' and ``various distribution sources'' to
assure that consumers can buy a variety of non-proprietary devices.
Moreover, we do not believe that the goals of section 629 would be met
if the commercial market consisted solely of Navigation Devices built
by developers with a business-to-business relationship with an MVPD,
because such an approach would not lead to Navigation Device developers
being able to innovate independently of MVPDs. We seek comment on this
interpretation. Does it take proper account of the fact that even some
Navigation Device developers that rely on the three Information Flows
to provide access to MVPD service may have other business relationships
with MVPDs unrelated to the provision of navigation devices? Are there
other interpretations that can assure a
[[Page 14037]]
competitive market as Congress intended?
We seek comment on this statutory analysis. Are there other sources
of Commission authority to adopt the proposed rules? For example, we
invite commenters to discuss the Commission's authority under Sections
624A and 335 of the Act and any other relevant statutory provisions.
Alternatively, should we modify our definition of ``navigation
devices'' to treat software on the device (such as an application) that
consumers use to access multichannel video programming and other MVPD
services as a ``navigation device,'' separate and apart from the
hardware on which it is running? For example, we seek comment on
whether we should add a sentence to our definition of ``navigation
devices'' that states, ``This term includes software or hardware
performing the functions traditionally performed in hardware navigation
devices.'' Would such a modification be consistent with our statutory
directive under section 629 to ``adopt regulations to assure the
commercial availability . . . of converter boxes, interactive
communications equipment, and other equipment'' used by consumers to
access multichannel video programming and other services offered over
MVPD systems? What implications would modification of our definition of
``navigation devices'' in this manner have on our current navigation
devices rules? Would this definitional change impact Commission rules
in other contexts? If so, commenters should identify the specific rule,
how the definitional change would impact the rule, and whether further
rule changes would be necessary to reflect the rule modification
adopted in this proceeding. For example, would such a modification
alter the accessibility obligations of device manufacturers and
software developers and, if so, in what manner?
Proposals. As discussed above, we do not believe that the current
marketplace provides the ``commercial availability'' of competitive
navigation devices by manufacturers, retailers, and other vendors not
affiliated with any MVPD that can access multichannel video programming
within the meaning of section 629. Given our experience to date, we
believe that Section 629 cannot be satisfied--that is, we cannot assure
a commercial market for devices that can access multichannel video
programming--unless companies unaffiliated with an MVPD are able to
offer innovative user interfaces and functionality to consumers wishing
to access that multichannel video programming. This interpretation is
in line with our current rules, which led to the creativity and
consumer benefits of the CableCARD regime. We also believe that the
goals of section 629 will not be met absent Commission action, given
MVPDs' incentive to limit competition. As we begin to craft rules that
will meet our 629 obligations, there are seven objectives that seem
paramount to our effort.
First, consumers should be able to choose how they access the
multichannel video programming to which they subscribe (e.g., through
the MVPD-provided user interface on an MVPD-provided set-top box or
app, through a set-top box offered by an unaffiliated vendor, or
through an application or search interface offered by an unaffiliated
vendor on a device such as a tablet or smart TV). We propose a rule to
define these ``Navigable Services'' as an MVPD's multichannel video
programming (including both linear and on-demand programming), every
format and resolution of that programming that the MVPD sends to its
own devices and applications, and Emergency Alert System (EAS)
messages, because we tentatively conclude that these elements are what
comprise ``multichannel video programming'' as that term appears in
section 629. We seek comment on this definition and whether there is
information beyond the multichannel video programming and EAS messages
that are essential parts of ``multichannel video programming and other
services offered over multichannel video programming systems'' that a
navigation system needs to access and that we should include in the
definition. For example, if an MVPD offers a ``cloud recording''
service that allows consumers to record programs and store them
remotely, should that cloud recording service be a ``Navigable
Service''? We seek comment on how to define ``MVPD service.''
Second, we recognize that the few successful CableCARD devices all
have something in common: They provide user interfaces that compete
with the user interfaces MVPD-provided set-top boxes render. Therefore,
MVPDs and unaffiliated vendors must be able to differentiate themselves
in order to effectively compete based on the user interface and
complementary features they offer users (e.g., integrated search across
MVPD content and over-the-top content, suggested content, integration
with home entertainment systems, caller ID, and future innovations).
Third, unaffiliated vendors must be able to build competitive
navigation devices, including applications, without first obtaining
approval from MVPDs or organizations they control. Senators Markey and
Blumenthal found that MVPDs take in approximately $19.5 billion per
year in set-top box lease fees, so MVPDs have a strong financial
incentive to use an approval process to prevent development of a
competitive commercial market and continue to require almost all of
their subscribers to lease set-top boxes.
Fourth, unaffiliated vendors must implement content protection to
ensure that the security of MVPD services is not jeopardized, and must
respect licensing terms regarding copyright, entitlement, and
robustness. This will ensure parity between MVPD-provided and
competitive navigation devices.
Fifth, our rules should be technology neutral, permitting both
software (e.g., cloud delivery) and hardware solutions, and not impede
innovation. This will ensure that consumers will not be forced to use
outdated, power-hungry hardware to receive multichannel video
programming services.
Sixth, our rules should allow consumers to use the same device with
different MVPDs throughout the country. Device portability will
encourage MVPD competition because consumers will be able to change
their video service providers without purchasing new equipment.
Finally, our rules should not prescribe a particular solution that
may impede the MVPD industry's technological progress. We seek comment
on these seven objectives, their appropriateness, and in particular
their relative importance.
Based on our tentative conclusion that the market for navigation
devices is not competitive, with the above objectives in mind, we
propose rules that will assure a competitive market for devices that
can access multichannel video programming without jeopardizing security
of the programming or an MVPD's ability to prevent theft of service, as
section 629 requires. Like the authors of the DSTAC Report, we split
our discussion of these proposals into sections regarding the non-
security and security elements of multichannel video programming
services.
The rules we propose are intended to address a fundamental feature
of the current market for multichannel video programming services,
namely the ``wide diversity in delivery networks, conditional access
systems, bi-directional communication paths, and other technology
choices across MVPDs (and even within MVPDs of a similar type).'' In
1998, the Commission concluded that it could address this technological
diversity in one of two
[[Page 14038]]
ways, either via complex devices, or via translation of those diverse
network technologies into a standardized format. This analysis stands
seventeen years after it was adopted. We do not wish to impose a
single, rigid, government-imposed technical standard on the parties,
but we understand that it would be impossible to build widely used
equipment without some standardization. Therefore, as explained further
below, we propose to allow MVPDs to choose the specific standards they
wish to use to make their services available via competitive navigation
devices or solutions, so long as those standards are in a published,
transparent format that conforms to specifications set by an open
standards body. We also tentatively conclude that we should require
MVPDs to comply with the rules we propose two years after adoption. We
seek comment on this tentative conclusion.
Non-Security Elements: Service Discovery, Entitlement, and Content
Delivery. We propose an approach to non-security elements that balances
the interests expressed by the members of the DSTAC and commenters who
filed in response to the DSTAC Report. Under this approach, we will
require MVPDs to provide Service Discovery, Entitlement, and Content
Delivery information (the ``Information Flows'') in standardized
formats that the MVPD chooses. Our proposal is based on the tentative
conclusion that the Information Flows are necessary to ensure that
developers that are not affiliated with an MVPD can develop navigation
devices, including software, that can access multichannel video
programming in a way that will assure a commercial market. We believe
that this proposed requirement is the least burdensome way to assure
commercial availability of navigation devices (the specifications
necessary to provide these Information Flows appear to exist today) and
is consistent with our prior rules. Moreover, this approach is
technology neutral--the Commission would not dictate the MVPD's
decision whether to rely on hardware or software to make the
Information Flows available. Therefore, the proposed approach would
provide each MVPD with flexibility to choose the standard that best
aligns with its system architecture. It would also give unaffiliated
entities access to the Information Flows in a published, transparent,
and standardized format so that those entities would understand what
information is available to them. We believe that this is the best
approach because the proposal does not require the Commission to
prescribe or even approve the standards so long as the Information
Flows are available. A benefit of this approach is that affected
industries will be able to evolve as technology improves.
Under our proposed rule, we would require each MVPD to provide
Service Discovery Data, Entitlement Data, and Content Delivery Data for
its ``Navigable Services'' in published, transparent formats that
conform to specifications set by open standards bodies. Under this
proposal, we would require MVPDs to provide these Information Flows in
a manner that does not restrict competitive user interfaces and
features. We seek comment below on this proposed rule and on our
proposed definitions of the terms (1) Service Discovery Data, (2)
Entitlement Data, (3) Content Delivery Data, and (4) Open Standards
Body.
We base these proposed rules on three main points from the DSTAC
Report related to non-security elements that we find compelling. First,
we agree with the Competitive Navigation advocates that developers need
the Information Flows in a standardized format to encourage development
of competitive, technology-neutral solutions for competitive
navigation. We also agree with the Proprietary Applications advocates,
however, that providing MVPDs with flexibility, where it will not
impair the competitive market, will encourage and support innovation.
Significantly, consistent with a major point of agreement in the DSTAC
Report, these proposed rules do not require MVPDs to ``commonly rely''
on the Information Flows for their own navigation devices, so they will
not need to replace the devices that they currently provide their
subscribers. We seek comment below on our proposed definitions of these
three Information Flows. In particular, we seek comment on how detailed
our definitions should be; that is, will standards-setting bodies
define the details of what information should be in the Information
Flows, sufficient to assure a commercial market for navigation systems
and meet our regulatory goals? Should we define this with the same
amount of detail proposed in the DSTAC Report? Are the definitions we
propose appropriate for all MVPDs, or does the diversity in network
architectures justify different definitions for traditional cable,
satellite, and IP-based services?
We propose to define Service Discovery Data as information about
available Navigable Services and any instructions necessary to request
a Navigable Service. We tentatively conclude that the Service Discovery
Data must include, at a minimum, channel information (if any), program
title, rating/parental control information, program start and stop
times (or program length, for on-demand programming), and an
``Entertainment Identifier Register ID'' so that competitive navigation
devices can accurately convey to consumers the programming that is
available. We seek comment on whether this is the minimum amount of
information that would allow a competitive navigation device developer
to build a competitive system. Should this data also include
information about the resolution of the program, PSIP data, and whether
the program has accessibility features such as closed captions and
video description? Should this data include the program description
information that the MVPD sends to its own navigation devices? For
example, is it necessary for the data to include descriptive
information about the advertising embedded within the program? Our
tentative view is that this level is detail is not necessary. Should it
include capabilities of the MVPD's Navigable Services? For instance,
the DSTAC Report refers to ``stream management'' as important
information that conveys the number of video streams that a particular
system can handle based on system bandwidth, tuner resources, or fraud
prevention. One approach is that the MVPD could provide unaffiliated
devices with information about the maximum number of simultaneous video
streams that can be watched or recorded via the Service Discovery Data
flow. We seek comment on this approach.
We propose to define Entitlement Data as information about (1)
which Navigable Services a subscriber has the rights to access and (2)
the rights the subscriber has to use those Navigable Services. This
reflects our assumption that Entitlement Data will include, at a
minimum, (1) copy control information and (2) whether the content may
be passed through outputs, and if so, any information pertaining to
passing through outputs such as further content protection and
resolution, (3) information about rights to stream the content out-of-
home, (4) the resolutions that are available on various devices, and
(5) recording expiration date information, if any. What additional
rights information should be included in Entitlement Data? We also
propose to require that this data reflect identical rights that a
consumer has on Navigation Devices that the MVPD sells or leases to its
subscribers. Consumers must be able to receive and use all of
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content that they pay for no matter the device or application they
choose, so long as that device or application protects content
sufficiently. We seek comment on whether our proposed definition is
flexible enough to adequately address future business models. Will
consumers' rights to ``access'' content vary from their rights to
``use'' the content? For example, what if a consumer subscribes to a 4K
feed of a particular channel, but the device only has content
protection that is approved by the content owner to protect the high-
definition feed? Will our proposed definition address that situation?
How should we treat Navigable Services that can be recorded and stored
remotely (i.e., ``cloud recording'' services)? Would our requirement
that Entitlement Data be identical for competitive navigation devices
and MVPD-provided navigation devices ensure that a subscriber could
record content on a competitive navigation device if the MVPD allows
subscribers to record and store that content remotely?
We propose to define Content Delivery Data as data that contains
the Navigable Service and any information necessary to make the
Navigable Service accessible to persons with disabilities under our
rules. We seek comment on this definition. Does content delivery
include services other than multichannel video programming and
accessibility information? For example, the DSTAC Report stated that
some MVPDs provide applications that include news headlines, weather
information, sports scores, and social networking. We tentatively
conclude that such information is unnecessary to include in the
definition of Content Delivery Data because that information is freely
available from other sources on a variety of devices, whereas
multichannel video programming is not. The provision of such
applications may allow MVPDs and unaffiliated companies to distinguish
themselves in a competitive market. In addition to the applications
listed in the DSTAC Report, NCTA states that MVPDs offer services that
allow subscribers ``to switch between multiple sports games or events
or camera angles, view[] video-on-demand with full interactive
`extras,' shopping by remote, or see[] the last channels they tuned.''
Is there anything in our proposed definition that would foreclose the
possibility that a competitive navigation device could offer these
services? We seek comment on this tentative conclusion.
As discussed above, we propose to require MVPDs to provide the
Information Flows in published, transparent formats that conform to
specifications set by ``Open Standards Bodies.'' We seek comment on our
proposed definition of Open Standards Body: A standards body (1) whose
membership is open to consumer electronics, multichannel video
programming distributors, content companies, application developers,
and consumer interest organizations, (2) that has a fair balance of
interested members, (3) that has a published set of procedures to
assure due process, (4) that has a published appeals process, and (5)
that strives to set consensus standards. We seek comment on whether
these are the appropriate characteristics. Are there others we should
consider? We believe that there is at least one body that meets this
definition but invite commenters to provide examples of such bodies. We
also believe that the characteristics listed in the definition would
arm the Commission with an established test to judge whether an MVPD's
method of delivering the three Information Flows is sufficient (in
combination with the other elements of the proposal discussed in this
item) to assure a retail market. The five characteristics that define
an Open Standards Body would ensure that navigation system developers
have input into the standards-setting process, give them confidence
that their devices will be able to access multichannel video
programming, and prevent them from needing to build a glut of
``capacities to function with a variety of types of different systems
with disparate characteristics.'' We seek comment on this proposed
approach.
We seek comment on whether our proposal addresses the critiques of
the Competitive Navigation approach that are set forth in the DSTAC
Report, comments filed in response to that report, and recent ex
partes. A consistent argument against the Competitive Navigation
approach has been its emphasis on a required set of standards. The
Commission has also been wary of stifling ``growth, innovation, and
technical developments'' through regulations to implement section 629.
We therefore seek comment on whether our proposed approach, which does
not mandate specific standards, balances these critiques against the
need for some standardization. Would this appropriately implement
Congress's clear direction in section 629 to ``adopt regulations to
assure the commercial availability'' of navigation devices ``in
consultation with appropriate industry standard-setting
organizations''? If not, how can we achieve that Congressional
directive?
NCTA claims that the Competitive Navigation approach would take
years of lengthy standards development to implement. Competitive
Navigation advocates, however, filed a set of specifications for
Service Discovery Data, Entitlement Data, and Content Delivery Data,
largely based on DLNA VidiPath, that they claim could achieve the
Competitive Navigation proposal today. They also claim that ``any
necessary standardization, if pursued in good faith, should take no
more than a single year.'' We seek comment on these views. The
Competitive Navigation advocates submitted evidence that DLNA has a
toolkit of specifications available. Given this evidence, we propose to
require MVPDs to comply with the rules two years after adoption. We
seek comment on whether the standards-setting process, if pursued in
good faith, could allow MVPDs to meet that proposed implementation
deadline. We seek specificity on what more work needs to be done for an
Open Standards Body to develop standards for Service Discovery Data,
Entitlement Data, and Content Delivery Data. Given the current toolkits
of specifications for Service Discovery Data, Entitlement Data, and
Content Delivery Data, is it possible for us to adopt a ``fallback'' or
``safe harbor'' set of specifications? If so, should they be those
proposed by the Competitive Navigation advocates, or others? We also
seek comment on any other mechanisms we can adopt to ensure that MVPDs
and other interested parties cooperate in prompt development of
standards.
The DSTAC Report includes an ``Implementation Analysis'' prepared
by opponents of the Competitive Navigation approach, arguing that it
does not fully establish a method for replicating, in a competitive
navigation device, all of the services that an MVPD might offer. Our
proposal's grant of flexibility to MVPDs gives them the opportunity to
seek and adopt standards in Open Standards Bodies that will allow such
replication. We seek comment on this issue.
Some commenters argue that the proposal constitutes compelled
speech, or interference with the manner of speech of MVPDs, and thus
imperils the First Amendment rights of these speakers. The Commission
does not believe that the proposed rules infringe MVPDs' First
Amendment rights. The proposal to require MVPDs to provide Content
Delivery Data would simply require MVPDs to provide content of their
own choosing to subscribers to whom they have voluntarily agreed to
[[Page 14040]]
provide such content. The rules would not interfere in any way with the
MVPD's choice of content or require MVPDs to provide such content to
anyone to whom they have not voluntarily entered into a subscription
agreement. Rather, the rules would simply allow the subscriber to
access the programming that the MVPD has agreed to provide to it on any
compliant Navigation Device. Thus, it does not seem that this aspect of
the proposed rules infringes MVPDs' First Amendment rights. The
proposal to require MVPDs to provide Service Discovery Data and
Entitlement Data would require MVPDs to disclose accurate factual
information concerning the Navigable Service and subscribers' rights to
access it. Service Discovery Data is simply information about the
Navigable Service, while Entitlement Data is information about the
subscriber's rights to use the Navigable Service, designed to protect
the service from unauthorized access. We believe that these proposed
disclosure requirements would withstand scrutiny under the First
Amendment. In general, government regulation of commercial speech will
be found compatible with the First Amendment if it meets the criteria
laid out in Central Hudson Gas & Electric Corp. v. Public Service
Commission, 447 U.S. 557, 566 (1980): (1) There is a substantial
government interest; (2) the regulation directly advances the
substantial government interest; and (3) the proposed regulation is not
more extensive than necessary to serve that interest. In Zauderer v.
Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), the Supreme
Court adopted a more relaxed standard to evaluate compelled disclosure
of ``purely factual and uncontroversial'' information. Under the
standard set forth in Zauderer, compelled disclosure of ``purely
factual and uncontroversial'' information is permissible if
``reasonably related to the State's interest in preventing deception of
consumers.'' The District of Columbia Circuit recently held in American
Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C.
Cir. 2014) (en banc), that government interests other than correcting
deception can be invoked to sustain a disclosure requirement under
Zauderer. Here, the proposed rules would require the disclosure of
purely factual and uncontroversial information concerning the MVPD's
service, which we believe would be sustained under the Zauderer and
Circuit Court precedents because the disclosures are reasonably related
to advancing the government interest in fostering competition in the
market for devices used by consumers to access video programming. We
have tentatively concluded that disclosure of this information is
necessary to ensure that developers who are not affiliated with an MVPD
can develop navigation devices that can access multichannel video
programming services, so as to foster the commercial market in such
devices envisioned by Congress. This is a policy that Congress directed
the Commission to advance through the adoption of rules, and we propose
to fulfill that statutory obligation in a manner that does not
impermissibly infringe on MVPDs' First Amendment rights. We seek
comment on this analysis.
Finally, some commenters argue that the Competitive Navigation
approach would require MVPDs to deploy ``a New Operator-Supplied Box''
to their subscribers. Other commenters disagree with this assertion,
and state that the solution could be implemented in the cloud at the
MVPD's discretion, thereby avoiding the need for new or additional
equipment. We believe that our proposal does not require most MVPDs to
develop or deploy new equipment, nor would it require subscribers to
obtain additional or new equipment. In fact, our proposal may make it
easier for MVPDs to offer cloud-based services because it gives each
MVPD the flexibility to choose the standards that best achieve its
goals. We seek comment on this belief. Would our proposal necessitate
any changes to the MVPD's network, or would it give the MVPD the
discretion to decide whether to modify its system architecture, as we
intend?
Proprietary Applications. The DSTAC's Proprietary Applications
approach proposed six different methods to deliver MVPD services that
would require consumers to use the MVPD's proprietary user interface.
As discussed above, we have significant doubt that such an approach
could assure a commercial market for navigation devices as Section 629
requires. However, we seek comment on the DSTAC's Proprietary
Applications approach and whether the Proprietary Applications approach
could satisfy section 629.
We also seek comment on whether our proposed rules could achieve
the benefits that the DSTAC Report's Proprietary Applications approach
endeavors to achieve. One of the purported benefits of the Proprietary
Applications approach is that it would provide MVPDs ``diversity and
flexibility.'' Our proposal attempts to give MVPDs a diversity of
choices and flexibility in making their Navigable Services available
through competitive navigation devices, by allowing them to choose from
any standard to offer the Information Flows, so long as the Information
Flows are provided in a published, transparent format developed by Open
Standards Bodies. Does this provide flexibility to MVPDs, while still
sufficiently limiting the universe of standards such that a device
could be built for a nationwide market? We seek comment on how much it
would cost to build a single device that is compatible with all of the
approaches listed by the Proprietary Applications advocates in the
DSTAC Report. If a device were compatible with all of these Proprietary
Applications approaches, would it be compatible with and able to
receive all multichannel video programming services? How would this
square with our statutory mandates under Sections 624A (with respect to
cable operators) and 629 of the Act?
Section 629 directs us to adopt regulations to assure a market for
devices ``from manufacturers, retailers, and other vendors not
affiliated with any multichannel video programming distributor.'' If
device compatibility relies on MVPDs developing ``device specific
apps,'' how could we assure entities that are not affiliated with the
MVPD that their devices will be able to access multichannel video
programming services? How would device manufacturers and consumers
ensure that support for the application is not withdrawn by the MVPD
without consultation with the device manufacturer and consumers? Do
proprietary applications impose costs or certification processes that
could, if left unchecked, thwart the mandates of Section 629? As an
alternative to our proposal, could and should we require MVPDs to
develop applications within a specific timeframe for each device
manufacturer that requests such an application, and to support that
application indefinitely? Section 629 also directs the Commission to
adopt regulations ``in consultation with appropriate industry standard-
setting organizations.'' Does this suggest that the Proprietary
Applications approach proposed in the DSTAC Report, which is not
entirely standards-based, is not what Congress had in mind? Are
applications, as they have been deployed, ancillary to leased devices,
and therefore unlikely lead to retail competition with leased devices?
Are the DLNA VidiPath, RVU, DISH Virtual Joey, and Sling Media
Technology Client applications ``two-device'' solutions that would
require consumers to attach MVPD-provided equipment to
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a separate piece of consumer-owned hardware? What standards, protocols,
or specifications exist that would allow MVPDs to offer those services
without any MVPD-specific equipment inside a consumer's home, or from
the cloud? Could MVPDs use those standards, protocols, or
specifications if we adopt our proposal? We also seek comment on any
other element of the Proprietary Applications approach.
Proposal Regarding Security Elements. We propose that MVPDs be
required to support a content protection system that is licensable on
reasonable and nondiscriminatory terms, and has a ``Trust Authority''
that is not substantially controlled by an MVPD or by the MVPD
industry. We believe this approach best balances the benefits of
flexibility in content protection choices by MVPDs with the need of
manufacturers to choose from a limited universe of independently
controlled content protection systems. Below we describe the two
alternative proposals set forth by DSTAC Working Group 3, and detail
the concerns raised about each by commenters. We then discuss why we
believe neither approach on its own would be sufficient to meet the
Commission's goals in this proceeding, and propose a ``via media'' that
could allow for a competitive market for innovative retail navigation
devices while also affording MVPDs significant flexibility.
DSTAC Proposals. The DSTAC's Working Group 3, which focused on
security, had significant points of agreement. Most fundamentally, the
group agreed that downloaded security components need to remain in the
control of the MVPD, but that consumer devices could not be built to
simultaneously support every proprietary content protection system.
Just as in the non-security context, however, DSTAC Working Group 3 had
fundamental disagreements. As summarized in the DSTAC Report, Working
Group 3 proposed two alternative approaches. The first is the ``HTML5''
approach, sometimes described as the ``DRM'' approach, which ``consists
of MVPD/OVDs supplying media streams over HTTPS [the secure version of
the protocol used to transfer data between a browser and Web site] and
CE/CPE devices accessing and decrypting those media streams by
supplying devices that implement the HTML5, EME, MSE and Web Crypto
APIs [software permitting secure handling of the media streams by the
devices].'' The most vocal advocates of the HTML5 approach are MVPDs
and content providers. The second approach is the ``Media Server,'' in
which ``[n]etwork security and conditional access are performed in the
cloud, and the security between the cloud and retail navigation devices
is a well-defined, widely used link protection mechanism such as
DTCP.'' The strongest advocates of the Media Server approach are
consumer electronics manufacturers and consumer-facing online service
providers, as well as consumer advocates. Content protection approaches
similar to both proposals are in widespread use today, in other content
delivery contexts. Although there are differences in how they currently
manifest, the key distinction is the way in which they allow MVPDs to
control access to content--their ``conditional access'' systems.
The HTML5 approach allows an MVPD to rely on any digital rights
management (DRM) system that it chooses to manage its content. DRM, in
this context, refers to a system of content protection that is based on
permissions granted from a centralized server that the content provider
(in this case, the MVPD) controls. DRM prevents subscribers from using
the programming they are entitled to access in unauthorized ways. If a
subscriber wishes to watch a particular program, the consumer's device
contacts the rights server. If the subscriber is entitled to view,
record, or otherwise utilize the content, then the rights server sends
a message of approval, and the device displays the content. If the
subscriber is not entitled to perform that task with the content, then
the rights server sends a message of disapproval, and the device does
not perform the task. Traditionally, rights servers for video are not
located in consumers' homes, so they do not require additional
equipment in the home. Devices like smart TVs and streaming devices
that are able to play programming protected by DRM must be built to
conform to each DRM, however, so not every device is equipped to handle
each type of DRM employed by MVPDs and other video distributors today.
Under the Media Server approach, conditional access is managed
before programming enters consumer devices, and the programming is
protected when moving to consumer devices by a standardized link
protection system. Link protection, in this context, is an encrypted
connection between a source and a receiver. The system is built on the
assumption that any device that has a certificate that deems it
trustworthy, granted by a trusted authority at the time of manufacture
and not subsequently revoked by the Trust Authority, will treat content
as instructed by copy control information embedded in data that is
transmitted with content. Like DRM, link protection prevents
subscribers from using the programming to which they subscribe in
unauthorized ways. This technology is how a Blu-ray player sends video
to a television set when physically connected--there is no additional
verification step necessary, because the television has a certificate
that the Blu-ray player trusts, and the television has that certificate
because it was tested by the organization that controls the bestowal of
certificates at manufacture to make sure that it is a secure device.
The Digital Transmission Licensing Administrator (DTLA), which was
founded by Intel Corporation, Hitachi, Ltd., Panasonic Corporation,
Sony Corporation, and Toshiba Corporation, is an example of an
organization that hands out those certificates. All of the five major
Hollywood studios have approved DTLA's link-protection technology
(DTCP) for protecting content as it travels from source to receiver.
Traditionally, link protection has been designed to protect content
within the home as it travels from one device (for example, a Blu-ray
player) to another (for example, a TV set).
Criticism of the DSTAC Proposals. Since publication of the DSTAC
Report, commenters have raised significant and compelling concerns
about universally imposing either approach in the way described by its
advocates. Criticism of the HTML5 approach has come from a spectrum of
commenters outside the MVPD community, but has centered on concern that
MVPDs could abuse their ability to fully control the conditional access
system necessary to access their content. For example, the Consumer
Video Choice Coalition argues that this approach would keep control in
the hands of MVPDs that ``have a history'' of using their leverage over
existing application deployment to prevent ``consumers from viewing
content they have paid for on the device of their choice.'' The DRM
licensor could be the MVPD itself, if it chose to offer only a
proprietary DRM solution, obviously posing a challenge to any device
manufacturer attempting to compete.
Critics of the Media Server approach have emphasized the security
difficulties potentially posed by a standardized link protection
system. For example, some commenters have stated that the current
version of DTCP, the industry standard, is inadequate to protect 4K and
ultra-high definition content. Commenters have also argued that the
technical limitations on the current version of DTCP would require
MVPD-provided equipment be in the home. DTLA has filed comments
[[Page 14042]]
responding to both of these criticisms, stating that the soon-to-be-
finalized version of DTCP will be secure enough to protect the highest
value content, and flexible enough to protect content delivered from
the cloud. NCTA, Adobe, and ARRIS argue that, however good the link
protection system, if it were industry-wide it would be a single,
static point of attack that hackers could exploit, and it would be
insufficiently flexible to respond to threats as they develop. NCTA
argues that ``[t]oday, device manufacturers and video services can
choose from a competitive marketplace of content protection
technologies to stay ahead of security threats.'' In contrast, they
claim, the Media Server proposal (specifically, as described in filings
after the issuance of the DSTAC Report) would ``lock[] out the whole
competitive market for DRM and content protection.''
The record reflects significant consensus about the importance of
flexibility, though clear disagreements exist about what that should
look like. Some of the strongest critiques are those that could apply
equally to any approach imposed on all MVPDs and competitive navigation
device manufacturers. The Commission has often been wary of mandating
the adoption of specific technologies, rather than functional goals.
Indeed, a number of commenters specifically warn against ``tech
mandates'' in this space. Although that particular phrasing is more
often heard from supporters of the HTML5 proposal, the warnings reflect
a broader concern about the importance of flexibility. Public Knowledge
argues that the Media Server proposal is superior because it is
``versatile and flexible,'' compared to the HTML5 proposal, which is
``too rigid technologically.'' Amazon asks us to ``approach this issue
from the standpoint of giving service providers technological
flexibility.'' Some commenters argue that the Commission should take no
action given the lack of consensus on this issue. A stance of total
inaction, however, would be an abdication of our responsibility under
section 629. Without clear guidance from the Commission on the question
of content protection, a truly competitive retail market for
alternatives to MVPD set-top boxes is unlikely to develop.
We are persuaded that the HTML5 proposal is not consistent with our
goals in this proceeding. By leaving total control of security
decisions to MVPDs, we would perpetuate a market in which competitors
are compelled to seek permission from an MVPD in order to build devices
that will work on its system. So long as MVPDs are themselves providing
and profiting from navigation equipment and services, retail devices
will be available only when they benefit an MVPD, not when they benefit
consumers, and a truly competitive market will remain out of reach.
Section 629, however, requires us to ensure that our rules do not
imperil the security of the content MVPDs are carrying. At the same
time, we also are not persuaded that we should require the Media Server
proposal. Mandating a single shared content protection standard for
every piece of MVPD content, as the Media Server proponents suggest,
would create too much potential for vulnerability. It would impose no
requirement (and thus, provide no guarantee) that the developer of that
single shared standard develop a new, more robust version in the event
of a hack.
Security Proposal. Based on the record, we believe there is a
middle path on the issue of content protection that can allow for a
competitive market for innovative retail navigation devices, including
software, that also affords MVPDs significant flexibility to protect
their content, evolve their content protection, and respond to security
concerns. Verimatrix asked the Commission not to ``mandate either or
even both [DSTAC proposals] as `the' standard solution.'' They argued
that both should be available as part of a ``toolkit'' of approaches
available to MVPDs, a toolkit that could in fact include other
approaches with the passage of time. We agree. We therefore propose
that MVPDs retain the freedom to choose the content protection systems
they support to secure their programming, so long as they enable
competitive Navigation Devices. In order to do so, at least one content
protection system they deploy, and to which they make available the
three Information Flows in their entirety, must be ``Compliant''--
licensable on reasonable and non-discriminatory terms, and must not be
controlled by MVPDs.
We believe this approach will give MVPDs the flexibility they need
to avoid creating a ``single point of attack'' for hackers, and the
freedom to set their own pace on eliminating system-specific content
security equipment in subscribers' homes, in response to the demands of
the market. At the same time, we believe it will assure competitors and
those considering entering the market that they can build to what is
likely to be a limited number of content protection standards
licensable on reasonable, non-discriminatory terms, and expect their
navigation devices to work across MVPDs. They will not need to seek
approval, review, or testing from the MVPDs themselves, who may have an
incentive to delay or impede retail navigation devices' market entry
because their leased navigation devices will remain in direct
competition with the retail market for the foreseeable future. We seek
comment on these assumptions.
Accordingly, we propose that MVPDs must support at least one
``compliant'' conditional access system or link protection technology,
although they may use others at the same time. A Compliant Security
System must be licensable on reasonable, nondiscriminatory terms, and
have a Trust Authority that is not substantially controlled by any MVPD
or group of MVPDs. An MVPD must make available the three Information
Flows in their entirety to devices using one of the Compliant Security
Systems chosen by the MVPD. Such a system might include, for example,
future iterations of DTCP or certain DRM systems. Commenters state that
these conditional access systems could be refined to permit the full
range of activity contemplated by the DSTAC, and cloud-based link
protection that would minimize or eliminate the need for MVPD-provided
equipment on the customer's premises. We seek comment on this proposal,
including whether we need to modify our existing definition of
``conditional access'' in any way.
We invite comment on some specific questions surrounding our
proposal. As noted above, DTLA has stated that a pending DTCP update
could fully satisfy the requirements of this proposal and the needs of
MVPDs. Are there other content protection systems, particularly
specific DRMs currently on the market, that are likely to be able to
comply with the requirements of this approach? We recognize that this
approach is likely to result in the need for competitors to support
more than one Compliant Security System in their navigation devices. We
believe the resulting number of Compliant Security Systems would still
allow Navigation Device developers to offer competitive options, but we
seek comment on this understanding. Is the term ``Trust Authority'' and
our definition--``[an] entity that issues certificates and keys used by
a Navigation Device to access Navigable Services that are secured by a
given Compliant Security System''--sufficiently clear? Are there more
accurate or descriptive terms? Should the entity that issues
certificates be the same as the one that issues keys? Should the entity
that licenses the Compliant Security System also be the
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Trust Authority for that system? Are the proposed restrictions on the
Trust Authority of a conditional access system enough to ensure its
independence from MVPDs? What criteria shall we use to determine
whether a Trust Authority is not ``substantially controlled'' by an
MVPD or by the MVPD industry?
Are there any other critical elements necessary for this proposal
to both protect MVPD content and ensure a market for competitors? Will
the lack of uniformity that may result from this proposal create an
undue burden on competitive entities? Could an MVPD support at least
one Compliant Security System but use a non-compliant content
protection system on their own Navigation Devices in a manner that
favors their own Navigation Devices (e.g., by selecting a Compliant
Security System that is computationally burdensome for competitive
devices)? Should our rules take into account differences in device,
viewing location (in-home and out-of-home), and picture quality, or
will our proposed ``parity'' requirement, discussed below, resolve any
issues in these areas? We also seek comment on whether we should
instead adopt one of the DSTAC proposals, or another alternative, as
the universal standard, and how such a standard could achieve our goals
of secure openness in this proceeding. If another alternative is
proposed, the proponent should provide sufficient detail to compare it
to the proposals set out here. We also seek comment on any other aspect
of security relevant to our goals in this proceeding that we should
take under consideration.
Parity. We propose to require that, in implementing the security
and non-security elements discussed above, MVPDs provide parity of
access to content to all Navigation Devices. This will ensure that
competitors have the same flexibility as MVPDs when developing and
deploying devices, including applications, without restricting the
ability of MVPDs to provide different subsets of content in different
ways to devices in different situations. Parity will also ensure that
consumers maintain full access to content they subscribe to consistent
with the access prescribed in the licensing agreements between MVPDs
and programmers. In order to achieve parity, we propose three
requirements. First, if an MVPD makes its programming available without
requiring its own equipment, such as to a tablet or smart TV
application, it must make the three Information Flows available to
competitive Navigation Devices without the need for MVPD-specific
equipment. Second, at least one Compliant Security System chosen by the
MVPD must enable access to all the programming, with all the same
Entitlement Data that it carries on its equipment, and the Entitlement
Data must not discriminate on the basis of the affiliation of the
Navigation Device. Third, on any device on which an MVPD makes
available an application to access its programming, it must support at
least one Compliant Security System that offers access to the same
Navigable Services with the same rights to use those Navigable Services
as the MVPD affords to its own application. We discuss these proposals
below.
The first proposed requirement is that, if an MVPD makes available
an application that allows access to its programming without the
technological need for additional MVPD-specific equipment, then it
shall make Service Discovery Data, Entitlement Data, and Content
Delivery Data available to competitive Navigation Devices without the
need for MVPD-specific equipment. For example, if an MVPD makes
available an iOS or Android application that allows access to its
programming, it must provide the three Information Flows to all
competitive Navigation Devices without requiring the use of additional
MVPD-specific equipment. The ability of competitive Navigation Devices
to access content without additional equipment is a concern that has
been raised repeatedly in the DSTAC proceeding. We believe that our
regulations would not assure a commercial market for Navigation Devices
if unaffiliated manufacturers, retailers, and other vendors need to
rely on MVPD-provided equipment to receive multichannel video
programming and affiliated entities do not. We seek comment on that
assumption. We base this proposal on the presumption that if an MVPD
can securely provide the information necessary for its proprietary
application to access its programming without any additional equipment,
then the MVPD should be able to provide that information to non-
affiliated Navigation Devices similarly without additional equipment.
We seek comment on this presumption. This proposal complements the
next, in that while the entirety of the Information Flows must be
available to all competitive Navigation Devices in this scenario, the
specifics of how each device may use the Navigable Services depend on
the relevant Entitlement Data.
We recognize that DBS providers specifically will be required to
have equipment of some kind in the home to deliver the three
Information Flows over their one-way network, even if they also provide
programming to devices connected to the Internet via other networks.
How should this fact be addressed by any rule that we adopt? Are there
content protection issues that are unique to DBS providers? Are there
technical issues that a Navigation Device developer would need to
address when developing a solution for a DBS system? We seek comment on
whether we need to create a DBS exception to our proposed rule
regarding proprietary applications that deliver MVPD content without
the use of additional MVPD-specific equipment. We intend for this
proposal to result in MVPDs serving the vast majority of non-DBS
subscribers providing the Information Flows without the presence of
additional MVPD-specific equipment. What technology or standards
available now or in the near future will allow this ``boxless''
provision? What impact will this have on MVPD systems? Will this
approach require any changes for current subscribers who do not choose
to seek out a competitive Navigation Device? Given the importance of
flexibility to the creation of a retail market, is this proposal
correctly tailored? Would it be possible to ensure nondiscriminatory
provision of the Information Flows, without requiring additional MVPD-
specific equipment in the home, in another way? We seek comment on this
proposal.
The second proposed requirement limits an MVPD's ability to
discriminate in providing the Navigable Services to competitive
Navigation Devices. We propose that at least one Compliant Security
System chosen by the MVPD enables access to all resolutions and formats
of its Navigable Services with the same Entitlement Data to use those
Navigable Services as the MVPD affords Navigation Devices that it
leases, sells, or otherwise provides to its subscribers. In addition,
we propose that Entitlement Data does not discriminate on the basis of
the affiliation of the Navigation Device. Our proposed rule requires
MVPDs to make the Information Flows fully available to any Navigation
Device using the Compliant Security System they have chosen to support.
Even today, however, MVPDs that provide their service to subscribers
via proprietary applications on certain equipment such as mobile
devices often provide only a subset of their multichannel video
programming, reserving the full service for set-top boxes or other in-
home viewing options. We understand that these business decisions are
made for a variety of reasons, including security and contracts with
content providers. We do
[[Page 14044]]
not believe that this practice poses a threat to the competitive market
for Navigation Devices so long as it is applied in a nondiscriminatory
fashion and does not interfere with the ability of competitive
Navigation Device makers to develop competitive user interfaces and
features. We seek comment on this view.
Our intent is that each MVPD make available complete access to all
purchased programming, on all channels, at all resolutions, on at least
one Compliant Security System that it chooses to support. Thus,
Navigation Devices accessing the three Information Flows via that
Compliant Security System would have the same complete access as an
MVPD's leased or provided set-top box in the home. As noted above,
though, we recognize that MVPDs may make distinctions regarding the
content delivered based on the use case of a device. We understand that
use cases are generally differentiated based on screen size and in- or
out-of-home viewing, and strength of content protection used. We seek
comment on whether there are any other meaningful distinctions among
use cases. We further understand that Entitlement Data enforces these
distinctions in programming today, and we propose to permit MVPDs to
continue to rely on Entitlement Data to draw those distinctions, so
long as competitive Navigation Devices are subject to only the same
restrictions as MVPD Navigation Devices. We seek comment on this
proposed requirement. Does a prohibition on discrimination based on
whether the Navigation Device developed is affiliated with the MVPD
assure equitable treatment for similarly situated Navigation Devices?
That is, will our proposed rule ensure that a competitive Navigation
Device is able to access the same content with the same usage rights as
a Navigation Device that the MVPD provides?
The final proposed parity requirement is that, on any device on
which an MVPD makes available an application to access its programming,
it must support at least one Compliant Security System that offers
access to the same Navigable Services with the same rights to use those
Navigable Services as the MVPD affords to its own application. Our
intent here is to ensure parity of access for competitive Navigation
Device developers. Our proposed rules do not require MVPDs to choose
Compliant Security Systems that would allow access from any device;
they instead must choose one or more Compliant Security Systems to
which devices can be built. It may be possible for an MVPD to abuse
this flexibility, however, and choose only Compliant Security Systems
that are not available on a device on which the MVPD makes available
its own application to access its programming, thereby eliminating
competition for access to MVPD programming via that device. The
proposed rule will ensure that a competitive application can access
MVPD programming on devices on which an MVPD makes available its own
application, thus further ensuring a competitive market for devices
including applications. We seek comment on this proposal.
We seek comment on whether the three parity requirements described
above, in conjunction with the other features of our proposal, will
achieve the goal of ensuring a competitive retail market for Navigation
Devices as contemplated by section 629. We particularly invite
commenters to weigh in on the expected efficacy of these proposals, and
their necessity in meeting the mandate of section 629. We are not
proposing to impose a common reliance requirement; rather, we are
striving to ensure equitable provision of content to competitive
Navigation Devices, to the extent necessary to achieve a competitive
retail market. We seek comment on this approach.
Licensing and Certification. We believe that licensing and
certification will play important roles under our proposed approach.
MVPDs, MPAA, and companies that supply equipment to MVPDs argue that
the Competitive Navigation approach could violate licensing agreements
between MVPDs, content companies, and channel guide information
providers. Based on our review of the DSTAC Report, the record, and the
contract that CableLabs uses to license technology necessary to build a
CableCARD device (DFAST), we have identified three major subject
matters that pertain to licensing and certification. As set forth
below, we seek comment on how licensing and certification can address
(1) robustness and compliance, which ensure that content is protected
as intended, (2) prevention of theft of service and harm to MVPD
networks, which ensures that devices do not allow the theft of MVPD
service or physically or electronically harm networks, and (3)
important consumer protections in the Act and the Commission's rules.
We then invite comment on alternative approaches we could take to
address these issues.
Compliance and Robustness. We seek comment on whether licensing can
ensure adherence to copy control and other rights information
(``compliance'') and adequate content protection (``robustness'').
Section 629(b) states that ``[t]he Commission shall not prescribe
regulations under subsection (a) of this section which would jeopardize
security of multichannel video programming and other services offered
over multichannel video programming systems, or impede the legal rights
of a provider of such services to prevent theft of service.'' We
interpret this section of the Act to require that we ensure that our
regulations do not impede robustness and compliance. To achieve this
statutory mandate, our regulations must ensure that Navigation Devices
(1) have content protection that protects content from theft, piracy,
and hacking, (2) cannot technically disrupt, impede or impair the
delivery of services to an MVPD subscriber, both of which we consider
to be under the umbrella of robustness (i.e., that they will adhere to
robustness rules), and (3) honors the limits on the rights (including
copy control limits) the subscriber has to use Navigable Services
communicated in the Entitlement Information Flow (i.e., that they
adhere to compliance rules). Through robustness and compliance terms,
we seek to ensure that negotiated licensing terms imposed by content
providers on MVPDs are passed through to Navigation Devices.
Accordingly, our proposal requires MVPDs to choose Compliant Security
Systems that validate only Navigation Devices that are sufficiently
robust to protect content and honor the Entitlement Data that the MVPD
sends to the Navigation Device. This is consistent with our
understanding based on the DSTAC Report that, in other contexts,
downloadable security systems usually include robustness and compliance
terms as part of design audits, self-verification, or legal agreements,
and that an untrustworthy actor will not be able to receive a
certificate for its Navigation Devices to verify compliance. We seek
comment on this proposed approach to address compliance and robustness.
We also seek comment on whether we need to define the term ``robustness
and compliance rules'' in our proposed definition of Compliant Security
System, or if that term has a common, understood meaning, as reflected
in the DSTAC Report. Should these terms include, at a minimum, what is
described in the DFAST license? Should these terms contemplate
protection of licensing terms between user guide information providers
and MVPDs, and thus require unaffiliated Navigation Device developers
to purchase their own detailed program guide information? Are there
alternatives to
[[Page 14045]]
our proposed approach that would ensure robustness and compliance? Are
there other terms from the DFAST license that we should cover in this
regard? In addition to section 629, are there other sources of
statutory authority for imposing these compliance and robustness
requirements, such as sections 335(a) and 624A of the Act? What impact,
if any, does the D.C. Circuit's decision in EchoStar Satellite L.L.C.
v. FCC have on the Commission's ability to adopt compliance and
robustness requirements?
Protection of MVPD Networks from Harm and Theft. We also believe
that a device testing and certification process is important to protect
MVPDs' networks from physical or electronic harm and the potential for
theft of service from devices that attach directly to the networks. We
seek comment on the extent to which unaffiliated devices will attach
directly to MVPD networks. If devices will connect directly to the MVPD
network, is our existing rule 76.1203 sufficient to assure that those
devices do not cause physical or electronic harm to the network? We do
not believe that each MVPD should have its own testing and
certification processes. Under the CableCARD regime, devices our rules
allowed testing to be performed by a qualified test facility, which is
defined as ``a testing laboratory representing cable television system
operators serving a majority of the cable television subscribers in the
United States or an appropriately qualified independent laboratory with
adequate equipment and competent personnel knowledgeable with respect
to the'' CableCARD standards. We seek comment on whether that approach
protected cable networks from physical and electronic harm and from
theft of service, and whether it had any effect on the commercial
availability of CableCARD devices. We also seek comment on which
entities have or may develop testing and certification processes. What
kind of testing should be required? We note, for example, there is a
seven-step certification process to ensure that DLNA-certified devices
do not have defects that would harm networks. Is this type of testing
sufficient? We seek comment on this proposal and any alternative
approaches, such as self-certification.
Consumer Protection. It is essential that any rules we adopt to
meet the goals of section 629 do not undermine other important public
policy goals underlying the Communications Act, which are achieved by
means of requirements imposed on MVPDs. Specifically, certain
commenters highlighted concerns that competitive Navigation Device
developers (i) would not keep subscribers' viewing habits private, as
MVPDs are required to do, (ii) would violate advertising limits during
programming for children, and (iii) would build devices that do not
display emergency alerts or closed captioning or enable parental
controls as MVPDs are required to do. We are encouraged by the fact
that retail navigation devices, such as TiVos, have been deployed in
the market for over a decade without allegations of a loss of consumer
privacy, violations of advertising limits during programming for
children, or problems with emergency alerts and accessibility.
Nonetheless, because these consumer protections are so important, we
propose to require that MVPDs authenticate and provide the three
Information Flows only to Navigation Devices that have been certified
by the developer to meet certain public interest requirements. We
tentatively conclude that this certification must state that the
developer will adhere to privacy protections, pass through EAS
messages, and adhere to children's programming advertising limits. This
proposal would mean that MVPDs are not required to enable the
Information Flows unless they receive this certification, and also that
they are prohibited from providing the Navigable Services to a
Navigation Device that does not have such a certification. MVPDs cannot
withhold the three Information Flows if they have received such
certification and do not have a good faith reason to doubt its
validity. This will ensure that the public policy goals underlying
these requirements are met regardless of which device a consumer
chooses to access multichannel video programming. We seek comment on
this proposal and invite alternative proposals within our jurisdiction
that would ensure that these important consumer protections remain in
effect while we promote a competitive navigation market. Should the
proposed certification address any other issues, including compliance
with the Commission's accessibility rules and parental controls, or
should we leave these matters to the market? We also seek comment on
whether the retail market will be competitive enough to make any such
regulation unnecessary (that is, the competitive market will assure
that the protections that consumers desire are adequately protected).
We seek comment on the best way to implement such a certification
process. Should this be a self-certification process, or are there
viable alternatives to self-certification? For example, should there be
an independent entity that validates the competitor's certification?
Should we develop a standardized form? Who would be responsible for
maintaining a record of the certification? Could Open Standards Bodies
or some other third-party entity require certification as part of their
regimes and maintain those records? Alternatively, should the
Commission maintain a repository of certifications? In addition, if
there are lapses in compliance with any certification, what would be
the appropriate enforcement mechanism?
With respect to all MVPDs, we believe that Section 629 of the Act
provides authority to impose these restrictions, because consumers may
be dissuaded from opting for a competitive navigation solution if they
are not confident that their interests will be protected to the same
extent as in an MVPD-provided solution. With respect to DBS operators,
we also believe section 335(a)--which directs the Commission to
``impose, on providers of direct broadcast satellite service, public
interest or other requirements for providing video programming''--
grants us authority to ensure that these goals are met regardless of
whether the DBS multichannel video programming is accessed by means of
a DBS-provided device. We also seek comment on whether the sources of
statutory authority for imposing on MVPDs privacy requirements,
advertising limits on children's programming, emergency alerting
requirements, closed captioning requirements, video description
requirements, parental control requirements, or other consumer
protection requirements also authorize the Commission to require that
MVPDs provide the three Information Flows only to Navigation Devices
that have been certified by the developer to meet certain public
interest requirements. This will ensure that the new Navigation Device
rules will not undercut our rules imposing those public interest
requirements. We seek comment on these views and invite commenters to
suggest any other sources of authority.
We seek comment on how MVPDs could ensure that they do not provide
the Information Flows to uncertified devices. Could the MVPD use device
authentication to ensure that they do not send the three Information
Flows to uncertified Navigation Devices? Could the Entitlement Data
direct a device not to display the Content Data unless the Navigation
Device was built by a developer who is certified? Are there
[[Page 14046]]
other methods MVPDs could use to ensure that they send the Information
Flows only to Navigation Devices that will honor these important
consumer protection obligations? Similarly, how can MVPDs ensure, as
both a technical and practical matter, that the Information Flows are
no longer provided if there are any lapses in a competitor's compliance
with these obligations?
We seek comment on how this requirement will affect Navigation
Device developers. We do not expect it will be difficult for developers
to certify to these consumer protections. For example, such content as
EAS alerts will be included in the Information Flows that MVPDs make
available, and we do not expect enabling receipt of this content to be
burdensome. Similarly, as to ensuring the privacy of subscriber
information, given the national market for consumer technology, they
must already ensure that their products and services meet the privacy
standards of the strictest state regulatory regime. Moreover, the
global economy means that many developers must comply with the European
Union privacy regulations, which are much more stringent that the
requirements placed on MVPDs under sections 631 and 338 of the
Communications Act.
Although we propose that competitive device manufacturers certify
compliance with sections 631 and 338, we seek comment on the extent to
which those manufacturers that collect personally identifiable
information from consumers using their devices are currently subject to
state privacy laws and the scope of any such laws. We note, for
example, that California's Online Privacy Protection Act applies to an
entity that owns an online service that collects and maintains
personally identifiable information from consumers residing in
California who use the online service if the online service is used for
commercial purposes. Would this statute apply to competitive device
manufacturers to the extent that they use the Internet to provide
programming guide, scheduling, and recording information to consumers?
Are there similar state privacy laws covering consumers residing in
each of the other states? To what extent do state privacy laws require
that manufacturers have privacy policies? MVPDs are obligated to
provide privacy protections under sections 631 and 338 of the Act. Do
state privacy laws require manufacturers to provide a comparable level
of consumer protection? For example, the privacy protections
established by sections 631 and 338 are enforceable by both the
Commission and by private rights of action. Do any state laws provide
for both administrative and private rights of action and/or damages in
the event of a privacy violation? TiVo asserts that it is subject to
enforcement by the FTC and state regulators for any failures to abide
by its comprehensive privacy policy. We note that the FTC has taken
legal action under its broad Section 5 ``unfair and deceptive acts''
authority against companies that violate their posted consumer privacy
policies. We seek comment on whether state laws governing unfair and
deceptive acts have similarly been used against companies that violate
their consumer privacy policies and whether these laws are applicable
to competitive device manufacturers. Furthermore, the Video Privacy
Protection Act, with limited exceptions, generally prohibits companies
that provide video online from disclosing the viewing history and other
personally identifiable information of a consumer without the
consumer's prior written consent. Does this statute impose any
obligations on competitive device manufacturers to protect personally
identifiable information collected from consumers? Are there any other
state or federal laws that would help to ensure that competitive device
manufacturers protect consumer privacy?
Licensing Alternatives. As an alternative to the licensing and
certification approaches we lay out above, should we instead require
industry parties to develop a standardized license and certification
regime, similar to the DFAST license, which has appeared to work at
balancing consumer protection issues and allowing retail Navigation
Device developers to innovate? Who would be responsible for managing
that licensing system? Should our Navigation Device rules instead
impose these terms by regulation, either initially or if industry
parties cannot reach agreement? Does the Commission have authority to
impose such terms via regulation? Has competitive navigation under the
CableCARD regime led to any license agreement violations, privacy
violations, or other violations of consumer protection laws? If so,
what were the specifics of those violations, and how were they
resolved?
We do not currently have evidence that regulations are needed to
address concerns raised by MVPDs and content providers that competitive
navigation solutions will disrupt elements of service presentation
(such as agreed-upon channel lineups and neighborhoods), replace or
alter advertising, or improperly manipulate content. We have not seen
evidence of any such problems in the CableCARD regime, and do not
expect that the new approach we propose above will allow such behavior.
Accordingly, we believe these concerns are speculative, and while we
believe at this time it is unnecessary for us to propose any rules to
address these issues, we seek comment on this view. We also seek
comment on the extent to which copyright law may protect against these
concerns, and note that nothing in our proposal will change or affect
content creators' rights or remedies under copyright law. In the event
that commenters submit evidence indicating that regulations are needed,
we seek comment on whether we have the authority and enforcement
mechanisms to address such concerns.
Small MVPDs. We seek comment on how any rules that we adopt could
affect small MVPDs, and whether we should impose different rules or
implementation deadlines for small MVPDs. We tentatively conclude that
all analog cable systems should be exempt from the rules we propose
today, just as they were exempt from the original separation of
security rules. We also seek specific comment on the American Cable
Association's proposal to exempt MVPDs serving one million or fewer
subscribers from any rules we adopt. Is there a size-neutral way that
we could ensure that our rules are not overly burdensome to MVPDs? The
American Cable Association also asserts that many of its members are
not prepared to transition soon to delivery of their services in
Internet Protocol, but we note that our proposed rules do not require
MVPDs to use Internet Protocol to deliver the three Information Flows
or Compliant Security System. For example, although we do not advocate
reliance on CableCARD as a long-term solution, we note that the
CableCARD standard largely appears to align with our proposed rules.
Could the CableCARD regime remain a viable option for achieving the
goals of Section 629 for those systems that continue to use QAM
technology? Are there any changes to the CableCARD rules that should be
made in light of more than a decade of experience with the regime or to
accommodate changes in the MVPD industry since the rules were adopted?
Do MVPDs who have not transitioned to IP delivery of control channel
information nonetheless provide IP-based applications to their
customers or use IP to send content to devices throughout a home
network? If so, should such MVPDs be required to comply with the rules
requiring parity
[[Page 14047]]
for other Navigation Device developers via the Information Flows?
Billing Transparency. We seek comment on how best to align our
existing rule on separate billing and subsidies for devices with the
text of the Act, the current state of the marketplace, and our goal of
facilitating a competitive marketplace for navigation devices. Section
629 states that our regulations ``shall not prohibit [MVPDs] from also
offering [navigation devices] to consumers, if the system operator's
charges to consumers for such devices and equipment are separately
stated and not subsidized by charges for any such service.'' We note
that, although Section 629(a) of the Act states that the Commission
``shall not prohibit'' any MVPD from offering navigation devices to
consumers if the equipment charges are separately stated and not
subsidized by service charges, it does not appear to affirmatively
require the Commission to require separate statement or to prohibit
cross-subsidies. In the Commission's 1998 Report and Order, which
implemented section 629, the Commission rejected the argument that
section 629's requirements are ``absolute'' and that the section
``expressly prevents all MVPDs from subsidizing equipment cost with
service charges.'' The Commission found that in a competitive market
``there is minimal concern with below cost pricing because revenues do
not emanate from monopoly profits. The subsidy provides a means to
expand products and services, and the market provides a self-
correcting resolution of the subsidy.'' The Commission thus concluded
that ``[e]xisting equipment rate rules applicable to cable television
systems not facing effective competition address Section 629(a)'s
requirement that charges to consumers for such devices and equipment
are separately stated and not subsidized by charges for any other
service.'' Accordingly, the Commission applied the separate billing and
anti-subsidy requirements set forth in Section 76.1206 of our rules
only to rate-regulated cable operators. In 2010, the Commission adopted
``CableCARD support'' rules, which included pricing transparency
requirements and required uniform pricing for CableCARDs ``regardless
of whether the CableCARD is used in a leased set-top box or a
navigation device purchased at retail.''
Developments since the 1998 Report and Order raise a question
whether the applicability of the Act's rate regulation provisions
should continue to determine the applicability of our separate billing
and anti-subsidy rules. At the time of that order, only a small
minority of cable systems had been determined to be subject to
``effective competition'' as defined in the rate regulation provisions
of the Act and thus exempted from rate regulation. Since that time, the
Commission has made many findings that the statutory test for effective
competition was met and updated its effective competition rules to
reflect the current MVPD marketplace. We are no longer convinced that
the statutory test for the applicability of rate regulation properly
addresses our objective of promoting a competitive market for
navigation devices as directed by Section 629. We base this proposed
change in policy on our belief that customers may likely consider the
costs of lease against purchase when considering whether to purchase a
competitively provided device, and must know what it costs to lease a
device in order to make an informed decision. Accordingly, we seek
comment on whether we should modify our billing and/or anti-subsidy
requirements set forth in section 76.1206.
In particular, under the circumstances that exist today, should we
revise our rules to require all MVPDs to state separately a charge for
leased navigation devices and to reduce their charges by that amount to
customers who provide their own devices, regardless of whether the
statutory test for the applicability of rate regulation is met? Is such
a requirement a necessary or appropriate complement to the rules we
propose today to facilitate the offering of competitive navigation
devices? We tentatively conclude that we should adopt such a
requirement with respect to all navigation devices, including modems,
routers, and set top boxes, and we invite comment on that tentative
conclusion.
If we adopt a requirement that all MVPDs state separately a charge
for leased navigation devices, we invite comment on whether we should
also impose a prohibition on cross-subsidization of device charges with
service fees. Section 629 discusses separate statement and prohibition
of cross-subsidy in the same sentence; but we read the statute to
permit us to make an individual determination whether to impose one
requirement or the other, or both (or neither). Do present market
circumstances warrant adoption of an anti-subsidization rule? Observers
often suggest that the charges currently imposed for leased devices are
typically excessive, rather than cross-subsidized. A requirement of
separate statement, by itself, should help to enable competition in the
marketplace to ameliorate excessive pricing of leased devices. Is it
therefore unnecessary at this time for us to adopt an expanded rule
against cross-subsidization? Or would such a rule provide a useful
prophylactic against future attempts to cross-subsidize? Would it
suffice to require that a nonzero price be identified for any leased
device? We seek comment on these issues. Commenters supporting adoption
of an expanded anti-cross-subsidization rule should address the
Commission's previous determination that ``[a]pplying the subsidy
prohibition to all MVPDs would lead to distortions in the market,
stifling innovation and undermining consumer choice.''
If we decide to adopt an updated anti-subsidy rule, how should we
determine whether a device fee is cross-subsidized? For example, would
the factors set forth in section 76.1205(b)(5) for determining the
price that is ``reasonably allocable'' to a device lease fee be
applicable for this purpose? How should we consider the possibility
that an MVPD would ascribe a zero or near-zero price to a navigation
device, and what implications might there be for further Commission
responsibilities and actions? Are there other ways in which we can
promote a competitive marketplace through requirements applicable to
equipment that MVPDs lease, sell, or otherwise provide to their
subscribers? For example, Anne Arundel and Montgomery Counties,
Maryland in their reply comments propose that our rules (1) prohibit
service charges for viewing on more than one device, (2) prohibit
service charge penalties for consumer-owned devices, (3) prohibit
multi-year contracts based on the use of a consumer-owned device, (4)
ban ``additional outlet'' fees, (5) prohibit requirements that
consumers lease equipment, and (6) give consumers the ability to
purchase equipment outright. Commenters should include a discussion of
the Commission's authority to adopt any regulations proposed.
CableCARD Support and Reporting. In this section, we seek comment
on whether the CableCARD consumer support rules set forth in section
76.1205(b) of the Commission's rules continue to serve a useful purpose
and should be retained following the D.C. Circuit's 2013 decision in
EchoStar Satellite L.L.C. v. FCC, which vacated two 2003 Commission
Orders adopting the CableCARD standard as the method that must be used
by digital cable operators in implementing the separation of security
requirement for navigation devices. We tentatively conclude that these
rules continue to serve a useful purpose and propose to retain them in
our rules. We seek
[[Page 14048]]
comment on this tentative conclusion. Alternatively, if commenters
contend that the CableCARD consumer support rules should be eliminated
or modified in light of EchoStar, commenters should explain the basis
for their contention. To the extent that we conclude that the CableCARD
consumer support rules continue to serve a useful purpose, we seek
comment on whether to eliminate the requirement that the six largest
cable operators submit status reports to the Commission every 90 days
on CableCARD deployment and support.
In 2005, the Commission adopted a requirement that the six largest
cable operators submit status reports to the Commission every 90 days
on CableCARD deployment and support. The Commission adopted this
reporting requirement to ensure that cable operators meet their
obligations to deploy and support CableCARDs. In an effort to ``improve
consumers' experience with retail navigation devices,'' the Commission
in 2010 imposed specific CableCARD consumer support requirements on
cable operators. Specifically, these CableCARD consumer support rules:
(1) Require cable operators to support the reception of switched
digital video services on retail devices to ensure that subscribers are
able to access the services for which they pay regardless of whether
they lease or purchase their devices; (2) prohibit price discrimination
against retail devices to support a competitive marketplace for retail
devices; (3) require cable operators to allow self-installation of
CableCARDs where device manufacturers offer device-specific
installation instructions to make the installation experience for
retail devices comparable to the experience for leased devices; (4)
require cable operators to provide multi-stream CableCARDs by default
to ensure that cable operators are providing their subscribers with
current CableCARD technology; and (5) clarify that CableCARD device
certification rules are limited to certain technical features to make
it easier for device manufacturers to get their products to market.
In 2013, the D.C. Circuit in EchoStar vacated the two 2003 Orders
adopting the CableCARD standard as the method that must be used by all
MVPDs in implementing the separation of security requirement for
navigation devices. The D.C. Circuit concluded that the Commission
lacked the authority under section 629 to impose encoding rules, which
put a ceiling on the copy protections that MVPDs can impose, on
satellite carriers. The Commission argued that those rules were not
severable from the rest of the rules adopted in the 2003 Orders
(including the rule that imposes the CableCARD standard), and therefore
the D.C. Circuit vacated both of the orders. Subsequently, questions
have been raised as to what effect, if any, the EchoStar decision has
on the continued validity of the CableCARD consumer support
requirements in Section 76.1205(b) of the Commission's rules.
We seek comment on whether the CableCARD consumer support rules set
forth in Section 76.1205(b) continue to serve a useful purpose after
the D.C. Circuit's 2013 decision in EchoStar. As discussed above, the
EchoStar decision vacated the two 2003 Orders that adopted rules
mandating that MVPDs use the CableCARD standard to support the
separation of security requirement. The EchoStar decision did not,
however, vacate or even address the consumer support rules for cable
operators that choose to continue to rely on the CableCARD standard in
order to comply with the separated security requirement, which remains
in effect. Accordingly, we believe that the consumer support rules set
forth in section 76.1205(b) continue to serve a useful purpose and
should be retained. We seek comment on this belief. Are the consumer
support rules still necessary to support a competitive market for
retail navigation devices?
Additionally, we seek comment on whether to eliminate the CableCARD
reporting requirement applicable to the six largest cable operators.
Specifically, we seek comment on whether the reporting requirement is
still necessary in light of the CableCARD consumer support
requirements, as well as the recent repeal of the integration ban. As
explained above, the reporting requirement was intended to ensure that
cable operators satisfy their obligations to deploy and support
CableCARDs. Are the consumer support requirements sufficient to ensure
that cable operators meet these obligations? If so, is there any reason
to retain the reporting requirement or should it be eliminated?
Initial Regulatory Flexibility Act Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (``RFA'') the Commission
has prepared this present Initial Regulatory Flexibility Analysis
(``IRFA'') concerning the possible significant economic impact on small
entities by the policies and rules proposed in this Notice of Proposed
Rulemaking (Notice). Written public comments are requested on this
IRFA. Comments must be identified as responses to the IRFA and must be
filed by the deadlines for comments indicated on the first page of the
Notice. The Commission will send a copy of the Notice, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA). In addition, the Notice and IRFA (or summaries
thereof) will be published in the Federal Register.
Need for and Objectives of the Proposed Rules. In the Notice, the
Commission seeks comment on proposed rules relating to the Commission's
obligation under Section 629 of the Communications Act to assure a
commercial market for equipment that can access multichannel video
programming and other services offered over multichannel video
programming systems. The NPRM tentatively concludes that new rules
about multichannel video programming distributor's (MVPD's) provision
of content are needed to further the goals of Section 629. It proposes
such new rules, relating to the information that MVPDs must provide to
allow competitive user interfaces, the security flexibility necessary
to protect content, and the parity requirements necessary to ensure a
level playing field between MVPD-leased equipment and competitive
methods that consumers might use to access MVPD service instead of
leasing MVPD equipment. The Notice also asks about MVPD fees for
devices and the current status of the Commission's CableCARD rules, the
existing rules arising from Section 629.
Legal Basis. The authority for the action proposed in this
rulemaking is contained in sections 1, 4, 303, 303A, 335, 403, 624,
624A, 629, 631, 706, and 713 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154, 303, 303a, 335, 403, 544, 544a, 549, 551,
606, and 613.
Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply. The RFA directs the Commission to
provide a description of and, where feasible, an estimate of the number
of small entities that will be affected by the proposed rules, if
adopted. The RFA generally defines the term ``small entity'' as having
the same meaning as the terms ``small business,'' small organization,''
and ``small government jurisdiction.'' In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act. A small business concern is one which:
(1) Is independently owned and operated; (2) is not dominant in its
field of operation; and (3) satisfies any additional criteria
established by the SBA.
Wired Telecommunications Carriers. The North American Industry
Classification System (``NAICS'') defines
[[Page 14049]]
``Wired Telecommunications Carriers'' as follows: ``This industry
comprises establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that
they own and/or lease for the transmission of voice, data, text, sound,
and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services; wired (cable) audio and video programming distribution; and
wired broadband Internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.''
The SBA has developed a small business size standard for wireline firms
for the broad economic census category of ``Wired Telecommunications
Carriers.'' Under this category, a wireline business is small if it has
1,500 or fewer employees. Census data for 2007 shows that there were
3,188 firms that operated for the entire year. Of this total, 3,144
firms had fewer than 1,000 employees, and 44 firms had 1,000 or more
employees. Therefore, under this size standard, we estimate that the
majority of businesses can be considered small entities.
Cable Television Distribution Services. Since 2007, these services
have been defined within the broad economic census category of Wired
Telecommunications Carriers, which category is defined above. The SBA
has developed a small business size standard for this category, which
is: All such businesses having 1,500 or fewer employees. Census data
for 2007 shows that there were 3,188 firms that operated for the entire
year. Of this total, 3,144 firms had fewer than 1,000 employees, and 44
firms had 1,000 or more employees. Therefore, under this size standard,
we estimate that the majority of businesses can be considered small
entities.
Cable Companies and Systems. The Commission has developed its own
small business size standards for the purpose of cable rate regulation.
Under the Commission's rules, a ``small cable company'' is one serving
400,000 or fewer subscribers nationwide. Industry data shows that there
are currently 660 cable operators. Of this total, all but ten cable
operators nationwide are small under this size standard. In addition,
under the Commission's rate regulation rules, a ``small system'' is a
cable system serving 15,000 or fewer subscribers. Current Commission
records show 4,629 cable systems nationwide. Of this total, 4,057 cable
systems have less than 20,000 subscribers, and 572 systems have 20,000
or more subscribers, based on the same records. Thus, under this
standard, we estimate that most cable systems are small entities.
Cable System Operators (Telecom Act Standard). The Communications
Act of 1934, as amended, also contains a size standard for small cable
system operators, which is ``a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' There are approximately 54 million cable video
subscribers in the United States today. Accordingly, an operator
serving fewer than 540,000 subscribers shall be deemed a small operator
if its annual revenues, when combined with the total annual revenues of
all its affiliates, do not exceed $250 million in the aggregate. Based
on available data, we find that all but ten incumbent cable operators
are small entities under this size standard. We note that the
Commission neither requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million. Although it seems certain that some of
these cable system operators are affiliated with entities whose gross
annual revenues exceed $250,000,000, we are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act.
Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. DBS, by exception, is now included in the
SBA's broad economic census category, Wired Telecommunications
Carriers, which was developed for small wireline businesses. Under this
category, the SBA deems a wireline business to be small if it has 1,500
or fewer employees. Census data for 2007 shows that there were 3,188
firms that operated for that entire year. Of this total, 2,940 firms
had fewer than 100 employees, and 248 firms had 100 or more employees.
Therefore, under this size standard, the majority of such businesses
can be considered small entities. However, the data we have available
as a basis for estimating the number of such small entities were
gathered under a superseded SBA small business size standard formerly
titled ``Cable and Other Program Distribution.'' As of 2002, the SBA
defined a small Cable and Other Program Distribution provider as one
with $12.5 million or less in annual receipts. Currently, only two
entities provide DBS service, which requires a great investment of
capital for operation: DIRECTV and DISH Network. Each currently offers
subscription services. DIRECTV and DISH Network each report annual
revenues that are in excess of the threshold for a small business.
Because DBS service requires significant capital, we believe it is
unlikely that a small entity as defined under the superseded SBA size
standard would have the financial wherewithal to become a DBS service
provider.
Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. The Notice proposes the following new or
revised reporting or recordkeeping requirements. It proposes that MVPDs
offer three flows of information using any published, transparent
format that conforms to specifications set by open standards bodies, to
permit the development of competitive navigation devices with
competitive user interfaces. It proposes that the flows of information
not be made available to a device absent verification that the device
will honor copying and recording limits, privacy, Emergency Alert
System messages, the Accessibility Rules in Part 79 of the Commission's
Rules, parental control information, and children's programming
advertising limits.
It further proposes that each MVPD use at least one content
protection system that is licensed on a reasonable and non-
discriminatory basis by an organization that is not affiliated with
MVPDs; that at least one such content protection system make available
the entirety of the MVPD's service; and that the MVPD ensure that, on
any device for which it provides an application, such a content
protection system is available to competitors wishing to provide the
same level of service. It also proposes a bar on Entitlement data
discrimination because of the affiliation of otherwise proper devices.
The Notice proposes to require each MVPD that offers its own
application on unaffiliated devices without the need for MVPD-specific
equipment to also offer the three information flows to unaffiliated
applications without the need for MVPD-specific equipment.
[[Page 14050]]
Finally, the Notice proposes to require MVPDs to separately state
the fees charged to lease devices on consumers' bills, and, in a
possible reduction of reporting requirements, seeks comment on
discontinuing a requirement that the six largest cable operators report
to the Commission about their support for CableCARD.
Steps Taken To Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered. The RFA requires an agency to
describe any significant alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): (1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
The Notice proposes rules intended to assure a commercial market
for competitive Navigation Devices. The Commission's has a statutory
obligation to do so, and has concluded that it cannot do so if
competitive Navigation Devices are tied to specific MVPDs. As a result,
the compliance requirements must be the same for all MVPDs, large and
small. The rules have been proposed in terms to minimize economic
impact on small entities. The proposed rules allow flexibility for
MVPDs while still assuring device manufacturers they can build to a
manageable number of standards, and assuring consumers that they only
need a single device. That flexibility arises from the fact that the
proposed rules establish performance standards, not design standards.
Although the compliance requirements must be the same in order to
comply with our statutory mandate, the requirements themselves are
clear and simple. Because they would be able, under the proposed rules,
to rely on open standards for information flows and RAND licensable
security, small MVPDs would not have to engage in complex compliance
efforts. The only reporting requirements are related to fees for device
leases, which cannot be further simplified for small entities. Finally,
although the rules do not contemplate exemptions for small entities,
the proposed rule requiring ``boxless' provision of the three
information flows applies only to MVPDs with the technological
sophistication to offer ``boxless'' programming to their own devices.
Thus, smaller MVPDs that are not providing this service will not be
required to implement ``boxless'' information flows by operation of the
proposed rule.
Federal Rules Which Duplicate, Overlap, or Conflict With the
Commission's Proposals. None.
Authority. This Notice of Proposed Rulemaking is issued pursuant to
authority contained in Sections 4(i), 4(j), 303(r), 325, 403, 616, 628,
629, 634 and 713 of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 154(j), 303(r), 325, 403, 536, 548, 549, 554, and 613.
Ex Parte Rules. The proceeding initiated by this Notice of Proposed
Rulemaking shall be treated as ``permit-but-disclose'' proceedings in
accordance with the Commission's ex parte rules. Persons making ex
parte presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must: (1) List
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made; and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda, or other filings in the proceeding, the presenter may
provide citations to such data or arguments in his or her prior
comments, memoranda, or other filings (specifying the relevant page
and/or paragraph numbers where such data or arguments can be found) in
lieu of summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
Filing Requirements. Pursuant to sections 1.415 and 1.419 of the
Commission's rules,\1\ interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (``ECFS'').\2\
---------------------------------------------------------------------------
\1\ See id. Sec. Sec. 1.415, 1.419.
\2\ See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998).
---------------------------------------------------------------------------
Electronic Filers: Comments may be filed electronically using the
Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must file an
original and one copy of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the
Commission's Secretary must be delivered to FCC Headquarters at 445
12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express
Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be
addressed to 445 12th Street SW., Washington, DC 20554.
Availability of Documents. Comments and reply comments will be
available for public inspection during regular business hours in the
FCC Reference Center, Federal Communications Commission, 445 12th
Street SW., CY-A257, Washington, DC 20554. These documents will also be
available via ECFS. Documents will be available electronically in
ASCII, Microsoft Word, and/or Adobe Acrobat.
People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large
[[Page 14051]]
print, electronic files, audio format), send an email to fcc504@fcc.gov
or call the FCC's Consumer and Governmental Affairs Bureau at (202)
418-0530 (voice), (202) 418-0432 (TTY).
Additional Information. For additional information on this
proceeding, contact Brendan Murray of the Media Bureau, Policy
Division, (202) 418-1573 or Lyle Elder of the Media Bureau, Policy
Division, (202) 418-2365.
Regulatory Flexibility Analysis. As required by the Regulatory
Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared
an Initial Regulatory Flexibility Analysis (IRFA) of the possible
significant economic impact on small entities of the policies and rules
addressed in this document. The IRFA is set forth in Appendix B.
Written public comments are requested in the IRFA. These comments must
be filed in accordance with the same filing deadlines as comments filed
in response to this Notice of Proposed Rulemaking as set forth on the
first page of this document, and have a separate and distinct heading
designating them as responses to the IRFA.
Initial Paperwork Reduction Act Analysis. This Notice of Proposed
Rulemaking seeks comment on a potential new or revised information
collection requirement. If the Commission adopts any new or revised
information collection requirement, the Commission will publish a
separate notice in the Federal Register inviting the public to comment
on the requirement, as required by the Paperwork Reduction Act of 1995,
Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44
U.S.C. 3506(c)(4), the Commission seeks specific comment on how it
might ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.''
Ordering Clauses. Accordingly, it is ordered, pursuant to the
authority contained in Sections 4(i), 4(j), 303, 303A, 335, 403, 624,
624A, 629, 631, 706, and 713 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), 303, 303a, 335, 403, 544, 544a, 549,
551, 606, and 613, that this Notice of Proposed Rulemaking and
Memorandum Opinion and Order is adopted.
It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking and Memorandum Opinion and
Order including the Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 76
Administrative practice and procedure; Cable television; Equal
employment opportunity; Political candidates; Reporting and
recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 76 as follows:
* * * * *
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
1. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548,
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
0
2. Amend Sec. 76.1200 by revising paragraphs (a) through (e) and
adding new paragraphs (f) through (m)to read as follows:
Sec. 76.1200 Definitions.
(a) Affiliate. A person or entity that (directly or indirectly)
owns or controls, is owned or controlled by, or is under common
ownership or control with, another person, as defined in the notes
accompanying Sec. 76.501.
(b) Certificate. A document that certifies that a Navigation Device
will honor privacy, Emergency Alert System messages, the Accessibility
Rules in part 79 of this Chapter, parental control information, and
children's programming advertising limits.
(c) Compliant Security System. A conditional access system or link
protection technology that: (1) Is licensable on reasonable and
nondiscriminatory terms; (2) relies on a Trust Authority not
substantially controlled by any multichannel video programming
distributor or group of multichannel video programming distributors;
and (3) is licensable on terms that require licensees to comply with
robustness and compliance rules.
(d) Conditional access. The mechanisms that provide for selective
access and denial of specific services and make use of signal security
that can prevent a signal from being received except by authorized
users.
(e) Content Delivery Data. Data that contains the Navigable Service
and any information necessary to make the Navigable Service accessible
to persons with disabilities under part 79 of this Title.
(f) Entitlement Data. Information about (1) which Navigable
Services a subscriber has the rights to access and (2) the rights the
subscriber has to use those Navigable Services. Entitlement data shall
reflect identical rights that a consumer has on Navigation Devices that
the multichannel video programming distributor sells or leases to its
subscribers.
(g) Multichannel video programming distributor. A person such as,
but not limited to, a cable operator, a BRS/EBS provider, a direct
broadcast satellite service, or a television receive-only satellite
program distributor, who owns or operates a multichannel video
programming system.
(h) Multichannel video programming system. A distribution system
that makes available for purchase, by customers or subscribers,
multiple channels of video programming other than an open video system
as defined by Sec. 76.1500(a). Such systems include, but are not
limited to, cable television systems, BRS/EBS systems, direct broadcast
satellite systems, other systems for providing direct-to-home
multichannel video programming via satellite, and satellite master
antenna systems.
(i) Navigable Service. A multichannel video programmer's video
programming and Emergency Alert System messages (see 47 CFR part 11).
(j) Navigation Devices. Devices such as converter boxes,
interactive communications equipment, and other equipment used by
consumers to access multichannel video programming and other services
offered over multichannel video programming systems.
(k) Open Standards Body. A standards body (1) whose membership is
open to consumer electronics, multichannel video programming
distributors, content companies, application developers, and consumer
interest organizations, (2) that has a fair balance of interested
members, (3) that has a published set of procedures to assure due
process, (4) that has a published appeals process, and (5) that strives
to set consensus standards.
(l) Service Discovery Data. Information about available Navigable
Services and any instructions necessary to request a Navigable Service.
(m) Trust Authority. An entity that issues certificates and keys
used by a
[[Page 14052]]
Navigation Device to access Navigable Services that are secured by a
given Compliant Security System.
0
3. Revise Sec. 76.1206 to read as follows:
Sec. 76.1206. Equipment sale or lease charge subsidy prohibition.
After January 1, 2017, multichannel video programming distributors
shall state the price for Navigation Devices separately on consumer
bills.
0
4. Add Sec. 76.1211 to read as follows:
Sec. 76.1211. Information Necessary to Assure a Commercial Market for
Navigation Devices.
(a) Each multichannel video programming distributor shall make
available to each Navigation Device that has a Certificate the Service
Discovery Data, Entitlement Data, and Content Delivery Data for all
Navigable Services in published, transparent formats that conform to
specifications set by Open Standards Bodies in a manner that does not
restrict competitive user interfaces and features.
(b) If a multichannel video programming distributor makes available
an application that allows access to multichannel video programming
without the technological need for additional multichannel video
programming distributor-specific equipment, then it shall make Service
Discovery Data, Entitlement Data, and Content Delivery Data available
to competitive Navigation Devices without the need for multichannel
video programming distributor-specific equipment.
(c) Each multichannel video programming distributor shall support
at least one Compliant Security System.
(1) At least one supported Compliant Security System shall enable
access to all resolutions and formats of the multichannel video
programming distributor's Navigable Services with the same Entitlement
Data to use those Navigable Services as the multichannel video
programming distributor affords Navigation Devices that it leases,
sells, or otherwise provides to its subscribers.
(2) Entitlement Data shall not discriminate on the basis of the
affiliation of the Navigation Device.
(d) On any device on which a multichannel video programming
distributor makes available an application to access multichannel video
programming, the multichannel video programming distributor must
support at least one Compliant Security System that offers access to
the same Navigable Services with the same rights to use those Navigable
Services as the multichannel video programming distributor affords to
its own application.
[FR Doc. 2016-05763 Filed 3-15-16; 8:45 am]
BILLING CODE 6712-01-P