TiVo and CEA Don’t Understand CableCARD Rules, Says Charter
Charter Communications fired back at requests by TiVo and CEA that the FCC Media Bureau reconsider a waiver of CableCARD rules granted to the cable operator in April (CD April 22 p3). In separate ex parte letters filed Tuesday (http://bit.ly/14wR1Wj and http://bit.ly/10Qxbb4), Charter said TiVo and CEA arguments that the waiver doesn’t require it to support CableCARDs are “premised on a mistaken understanding” of the commission’s rules and the impact of the January EchoStar decision by the U.S. Court of Appeals for the D.C. Circuit (http://bit.ly/10nMM3E).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Charter said that before the waiver, the EchoStar decision and other rule changes had created uncertainty about whether the company was required to provide customers with CableCARDs, and requirements imposed on it in the waiver actually firmed up that obligation. “The Bureau did not weaken CableCARD support requirements -- the D.C. Circuit did,” said Davis Wright attorney Paul Glist in Charter’s response. “Granting CEA’s application and vacating the waiver order would not strengthen CableCARD support requirements, it would weaken them.” TiVo did not comment. CEA will file a reply to Charter before the June 13 deadline, said a spokeswoman for the association.
CEA and TiVo argued in their filings that though EchoStar invalidated portions of the commission’s CableCARD rules, Section 76.1205(b) still required companies to support CableCARDs. But Glist said a 2011 rule change to Section 76.1205(b) made it applicable only to companies listed as multichannel video programming distributors under Section 76.640 -- the section invalidated by EchoStar. “The Bureau recognized that after EchoStar, Charter no longer had any clear obligation to provide or support CableCARDs, so it conditioned the waiver on continued support,” said Glist.
Charter also accused CEA of repeating arguments that had been rejected during the bureau’s 2010 CableCARD waiver proceeding, which ended with Cablevision receiving a waiver. Charter said those arguments -- that the waiver would undermine the retail market and leave customers who depend on CableCARDs unable to obtain them -- don’t apply because Charter already uses many more CableCARD devices than Cablevision did. Charter also said its waiver differed from Cablevision’s because of conditions imposed on Charter in the waiver that include “continued support of CableCARD self-installation, M-Card, switched digital video solutions, uniform CableCARD fees, the IP output requirement, and the bring-your-own-box discount requirement."
Charter also responded to a request by TiVo for a rule change that all new MVPD security systems must be submitted to the commission for approval. “Any rule that would freeze MVPDs with existing security systems unless and until any change is approved by the Commission” would violate rules that bar the agency from making regulations, “which would jeopardize security of multichannel video programming,” said Glist.
"TiVo just wants to make sure there are still going to be CableCARDs,” said Beyond Broadband Technologies Director-Strategic Communications Stephen Effros, who has filed ex parte letters in support of Charter’s waiver, in an interview. “If Charter has said that it’s going to provide CableCARDs, what is the problem?” Effros said that since many new devices, such as Microsoft’s Xbox One, don’t use CableCARDs, MVPDs shouldn’t be required to exclusively use them, as long as they pledge to continue supporting the older hardware. “Neither satellite, U-Verse, nor IPTV support CableCARDs, and CEA has not challenged these varied security implementations,” said Glist. “Given that 40 percent of MVPD consumers now purchase video services from companies that do not support CableCARDs, it is paradoxical for CEA to argue that national uniformity in CableCARDs must be maintained.”