Ex Parte Filings Suggest FCC Has New Set-Top Plan
Recent meetings between programmers and eighth-floor officials suggest the FCC is proposing a new, apps-based set-top plan, intended to be more acceptable to content companies than previous approaches, according to several recent ex parte filings and pay-TV industry officials. In meetings documented in docket 16-42 with 21st Century Fox and Disney and a similar meeting with CBS, FCC officials including Chief Technology Officer Scott Jordan and aides to Chairman Tom Wheeler told content companies they were considering a “revised” set-top plan that would allow all programmer content to remain in pay-TV apps and therefore within the bounds of existing contracts between carriers and programmers, the ex parte filings said. Neither content company officials nor the FCC would comment Thursday.
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Other pay-TV industry officials agreed it appears the commission is backing a new proposal that differs from the original set-top NPRM, which wouldn't have allowed all content to remain in industry apps. Outside the apparent negotiations between programmers and the FCC, interested parties on both sides continue to battle over a Copyright Office letter (see 1608050053) that slammed the FCC plan. The Computer and Communications Industry Association released a white paper Thursday on the FCC's set-top plans.
All three content company ex parte filings said the FCC is saying the new proposal would keep all content inside pay-TV apps and require third-party boxes to honor the terms of programmer licenses with multichannel video programming distributors. Though CBS, Disney and 21st Century Fox cited concerns with the FCC plan, they also expressed support for rules that keep their content inside apps.
The FCC plan should allow programmers and MVPDs to be involved in authoring any third-party licensing regime and should maintain "parity" of the programmer apps and include provisions for enforcement, Fox and Disney said. CBS expressed concern about transferring viewer measurement data. Details of the FCC plan aren't clear.
Pay-TV officials told us it sounds similar to the pay-TV-backed apps proposal raised by NCTA, AT&T and others. But multiple pay-TV officials told us they thought it was unlikely the FCC would offer the MVPD plan without changing it in some fashion to be closer to the NPRM.
The FCC is seen as reaching out to programmers on the new plan because they have the strongest arguments against the FCC's NPRM, especially after the CO letter that backed many programmer criticisms of the NPRM. Wheeler himself reached out to programmers just before that letter was issued (see 1608040062), and they're seen as having leverage in the set-top proceeding.
The CO letter showed the FCC's original set-top plans were so flawed that “no modest revisions” can fix them, said the Free State Foundation in a blog post Thursday. FSF wants the FCC to terminate the entire set-top proceeding rather than move to a new plan. “Hopefully, the Commissioners' recognition of these copyright concerns will lead them to terminate the current set-top box proceeding,” the blog post said. If the FCC wants to examine new regulations, it should do so through a notice of inquiry, FSF said. Mozilla disagreed in a recent filing, urging the FCC to ignore the CO letter (see 1608160055).
The CCIA white paper includes proposals to make the original NPRM more palatable to opponents. The FCC could use a "digital certificate" system that would ensure that third-party boxes honored "contractual language pertaining to advertising, channel number preservation, and privacy compliance," CCIA said. The group attacks the HTML5 based pay-TV app approach, which it said "is an inadequate replacement for a 'native' application that would run on a media device such as a TV set or streaming media player." HTML5 can't run on all devices, said the association.