[Federal Register Volume 85, Number 234 (Friday, December 4, 2020)]
[Rules and Regulations]
[Pages 78237-78239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25143]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 16-42, CS Docket No. 97-80; FCC 20-124; FRS 17231]
Expanding Consumers' Video Navigation Choices; Commercial
Availability of Navigation Devices
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) eliminates outdated CableCARD support and reporting
requirements and terminates related dockets.
DATES: Effective December 4, 2020.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Brendan Murray, Brendan.Murray@fcc.gov, of the
Media Bureau, (202) 418-1573.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 20-124, adopted and released on September 4, 2020. The
full text of this document is available for public inspection via ECFS
(http://www.fcc.gov/cgb/ecfs/). To request these documents in
accessible formats (computer diskettes, large print, audio recording,
and Braille), send an email to fcc504@fcc.gov or call the Commission's
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice),
(202) 418-0432 (TTY).
Synopsis
In this Report and Order, we terminate a proceeding in which we
sought comment on the adoption of new regulations for ``navigation
devices''--devices that consumers use to access multichannel video
programming and other services offered over multichannel video
programming networks--and eliminate outdated CableCARD support and
reporting requirements. Four years ago, the Commission published a
notice of proposed rulemaking (NPRM) (81 FR 14033, March 16, 2016) that
proposed a complex framework of regulations which would have required
multichannel video programming distributors (MVPDs) to provide
unbundled flows of programming information to third-party
manufacturers, retailers, and software developers to enable them to
create navigation devices in an attempt to assure a commercial market
for navigation devices.\1\ However, the record submitted in response to
the NPRM raises serious and significant questions about whether the
proposed rules would adequately protect multichannel video programming
content. Moreover, the record fails to convince us that the proposal is
necessary to accomplish its intended goal, and we conclude that the
proposed regulations do not reflect the past four years of substantial
marketplace changes in the delivery and consumption of video
programming. Separately, we eliminate the CableCARD consumer support
rules and the requirement that large cable operators report to the
Commission about support and deployment of CableCARD modules because
these regulations no longer serve a useful purpose and thus are no
longer necessary.
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\1\ Expanding Consumers' Video Navigation Choices; Commercial
Availability of Navigation Devices, MB Docket No. 16-42 and CS
Docket No. 97-80, Notice of Proposed Rulemaking & Memorandum Opinion
and Order, 31 FCC Rcd 1544, 1558-82, paras. 25-78 (2016).
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Section 629 of the Communications Act of 1934, as amended (Act),
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 further directs that the Commission
shall not prescribe such regulations ``which would jeopardize the
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.'' Through a
series of rulemakings, the Commission has adopted regulations intended
to assure this commercial availability of devices. The bellwether
requirement of these rulemakings, which led to the ``CableCARD''
standard, allows viewers to receive digital cable services by attaching
their own equipment directly to the cable network. In 2005, to better
monitor support for the then-nascent CableCARD technology, the
Commission required the six largest cable operators to submit status
reports to the Commission every 90 days that detail how these cable
operators met ``their obligations to deploy and support CableCARD.''
(70 FR 36048, June 22, 2005).\2\ In 2010, the Commission adopted
regulations to further ensure cable operator support for retail
CableCARD devices. (76 FR 40263, July 8, 2011).\3\ In 2016, the
Commission's NPRM proposed a new and complicated regulatory regime for
navigation devices.\4\
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\2\ Implementation of Section 304 of the Telecommunications Act
of 1996: Commercial Availability of Navigation Devices, CS Docket
No. 97-80, Second Report and Order, 20 FCC Rcd 6794, 6814-15, para.
39 (2005) (2005 Report and Order).
\3\ Implementation of Section 304 of the Telecommunications Act
of 1996: Commercial Availability of Navigation Devices, CS Docket
No. 97-80 and PP Docket No. 00-67, Third Report and Order and Order
on Reconsideration, 25 FCC Rcd 14657 (Third Plug and Play Report and
Order), recon. granted in part sua sponte, Order on Reconsideration,
26 FCC Rcd 791 (2011).
\4\ NPRM, 31 FCC Rcd at 1558-82, paras. 25-78.
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We conclude that further Commission intervention in the navigation
device marketplace is not necessary at this time. We have serious and
unresolved concerns about the security of multichannel video
programming and copyright licensing under the proposed rules. Moreover,
we conclude that the record raises other substantial doubts about the
wisdom and necessity of the complex regulations proposed in the NPRM.
On the other hand, we find that the CableCARD consumer support rules no
longer serve a useful purpose following the D.C. Circuit's 2013
decision in Echostar Satellite L.L.C. v. FCC, 704 F.3d 992 (D.C. Cir.
2013) (Echostar), and accordingly eliminate these rules. We also
conclude that the 15-year-old CableCARD reporting requirement is no
longer necessary.
Closing the 2016 Proceeding. In 2016, the Commission sought comment
on the need for new rules to implement section 629. We conclude that we
need not adopt any new rules at this time. Although the NPRM
tentatively concluded that the Commission ``should adopt new
regulations to further section 629,'' \5\ there is substantial evidence
in the record challenging that tentative conclusion. The consequences
of adopting the proposed regulations could be substantial and
detrimental to consumers, copyright holders, and MVPDs, and thus we are
reluctant to adopt these additional regulations to implement section
629, quite apart from the substantial doubts in the record as to
whether they will help assure a commercial market for devices that
[[Page 78238]]
consumers can use to access multichannel video programming. In
addition, the Commission last sought comment on these issues more than
four years ago, and since then important changes have occurred in the
video programming marketplace and delivery of those services via
applications that run on subscriber-owned devices. Moreover, we note
that since the record closed, the Government Accountability Office
(GAO) concluded that the NPRM did not sufficiently analyze ``the extent
to which internet-based providers affect consumer choice for video
programming and what that change means for the importance of consumer
choice for devices in the context of the Act.'' \6\
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\5\ NPRM, 31 FCC Rcd at 1551, para. 13.
\6\ U.S. Gov't Accountability Office, GAO-17-785, FCC Should
Conduct Additional Analysis to Evaluate Need for Set-Top Box
Regulation, at 22 (2017) (GAO Report).
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Section 629(b) of the Act prohibits the Commission from adopting
regulations under section 629 that would jeopardize the security of
multichannel video programming. Several programmers, MVPDs, and the
U.S. Copyright Office express serious concerns that the proposed rules
and the applications-based alternative would jeopardize the security of
programming and licensing contracts between programmers and MVPDs.
Although we recognize that some commenters claim that the proposed
rules would not interfere with programmers' copyright interests, we
have ongoing concerns about the security risks and licensing issues the
proposed rules could introduce. For instance, many commenters argue
that the proposed rules would undermine anti-piracy protections,
reducing the incentives of parties to invest in new content. In
addition, the Commission's proposal could force MVPDs, programmers, and
copyright holders to violate the copyright licensing contract
obligations to which they agreed, leading to costly and time-consuming
litigation. Further, the record also raises licensing concerns with
respect to the applications-based alternative, as commenters contend
that this approach might lead to content to be distributed on terms to
which programmers have not agreed and object to Commission involvement
in the licensing process. Accordingly, in light of section 629(b) and
the impact the proposed rules could have on the video programming
marketplace generally, including the availability and quality of
programming, we find that we should not adopt the proposed rules or the
applications-based alternative.
We also note that it appears the policy goals that the Commission
set forth in the NPRM are well underway to being met without additional
Government regulation. The Commission stated in the 2016 NPRM that it
wanted 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.'' \7\ And according to NCTA--
The internet & Television Association (NCTA), the nine largest MVPDs
``support apps that can be used to watch their content on hundreds of
millions of consumer-owned devices, such as smart TVs; tablets;
streaming sticks and devices such as Apple TV, Roku, Google Chromecast,
and Amazon Fire; smartphones; game consoles; and personal computers.''
\8\ Therefore, without Commission intervention, many MVPD subscribers
can watch the services that they pay for wherever, however, and
whenever they want on an array of innovative devices via many different
applications. Given the current state of the video programming
marketplace, we are concerned that adopting the proposals set forth in
the NPRM would risk stifling innovation and deterring investment in
this sector and, thus, could ultimately detract from Congress's
overarching goal for a fully competitive market for navigation devices.
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\7\ NPRM, 31 FCC Rcd at 1551, para. 11.
\8\ NCTA Comments, GN Docket No. 20-60, at 21-22.
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The 2017 GAO Report recommended that we ``analyze how the ongoing
evolution in the video programming market affects competition in the
related market for set-top boxes and devices, including how it affects
the extent to which consumer choice for devices to access MVPD content
remains a relevant aspect of the competitive environment'' \9\ as part
of our competition reports. We will continue to monitor the navigation
marketplace to determine whether further regulation is necessary to
assure a commercial market for navigation devices, consistent with the
requirements of section 629.
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\9\ GAO Report at 22-23.
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CableCARD Support and Reporting Requirements. We are eliminating
the CableCARD consumer support rules. We conclude that these rules no
longer serve a useful purpose following the D.C. Circuit's 2013
decision in Echostar. We acknowledge that the NPRM tentatively
concluded that the CableCARD support rules continue to serve a useful
purpose and should be retained. Nevertheless, after further
consideration, we are unpersuaded by assertions that these rules remain
necessary to ensure that consumers have retail alternatives to leased
set-top boxes and that cable operators continue to support retail
CableCARD devices during their expected lifetime. The CableCARD support
rules were intended to help ``assure the development of a retail market
for devices that can navigate cable services'' by ``improv[ing]
consumers' experience with retail navigation devices . . . and
CableCARDs.'' (76 FR 40263, July 8, 2011).\10\ However, during the ten
years in which these rules have been in effect, consumer demand for
retail CableCARD devices never developed as anticipated. Indeed, in the
four years since the NPRM in this proceeding was issued, consumer
demand for retail CableCARD devices has steadily declined. We agree
with NCTA that this decline in demand is partially attributable to the
growing popularity of MVPD applications. MVPD applications are
ubiquitous today, and consumers have fully embraced the use of such
applications to access video programming. We note that the CableCARD
support rules were intended to help advance the market for retail
navigation devices ``[u]ntil a successor technology is actually
available.'' (76 FR 40265, July 8, 2011).\11\ MVPD applications are a
new technology that is providing consumers an alternative to leased
set-top boxes. Given that consumers have demonstrated a clear
preference in recent years for applications over retail CableCARD
devices, we expect that demand for retail CableCARD devices will only
continue to fall. Accordingly, we conclude that retention of the
CableCARD support rules is not necessary to ensure that consumers have
retail alternatives to leased set-top boxes.
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\10\ Third Plug and Play Order, 25 FCC Rcd at 14658, para. 1.
\11\ Third Plug and Play Order, 25 FCC Rcd at 14662, para. 8.
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We also find that retention of the CableCARD support rules is
unnecessary to ensure that cable operators continue to support retail
CableCARD devices during their expected lifetime. As NCTA points out,
cable operators are still required to provide separable security, and
industry complies with this obligation through the use of CableCARDs,
even after Echostar eliminated the mandate that the CableCARD standard
be used by all MVPDs in implementing the separation of security
requirement. NCTA also
[[Page 78239]]
asserts that since there are tens of millions of CableCARDs currently
deployed in cable operator-provided devices, ``[c]able operators have
strong business incentives to ensure that CableCARDs continue to
function properly.'' \12\ We agree and further find that competitive
market forces should incentivize cable operators to continue to support
retail CableCARD devices. Given the continuing decline in cable
subscribership and the vast array of streaming service options
available to consumers today, we expect that cable operators will make
every effort to retain subscribers by continuing to support retail
CableCARD devices, even in the absence of the CableCARD support rules.
We further note that one of the major concerns leading to the adoption
of the CableCARD support rules was the cable industry's poor
performance with regard to subscriber premise installations of
CableCARDs in retail devices. Cable subscribers have come to expect
self-installation options and we think it is exceedingly unlikely that
cable operators will revert to requiring professional installations for
retail CableCARD devices, particularly in light of issues raised by the
current coronavirus pandemic.
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\12\ NCTA Comments at 173.
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Finally, we conclude that it is appropriate to eliminate the
requirement that the largest cable operators report about CableCARD
support and deployment on a quarterly basis. Much of the information
required to be included in the reports is either repetitious or has
little relevance today, and the reports filed in recent years reveal
few problems with CableCARD deployment and the processes for resolving
CableCARD implementation problems are generally unchanged from report
to report. Thus, we see little practical utility in continuing to
require the cable operators to report this information. We accordingly
conclude that the quarterly status reports are no longer necessary to
ensure that cable operators support retail CableCARD devices and we
eliminate them.
Paperwork Reduction Act. This document does not contain any
proposed, new, or modified information collection subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition,
therefore, it does not contain any new or modified ``information
collection burden for small business concerns with fewer than 25
employees,'' pursuant to the Small Business Paperwork Relief Act of
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Final Regulatory Flexibility Act Analysis. The Report and Order
interprets Section 629 of the Communications Act, 47 U.S.C. 549, and
terminates the proceedings CS Docket No. 97-80 Commercial Availability
of Navigation Devices and MB Docket No. 16-42 Expanding Consumers'
Video Navigation Choices because of serious and significant questions
about whether the proposed rules would protect programming outweigh the
speculative benefits of proposed set-top box rules. The Report and
Order also eliminates the CableCARD consumer support rules, concluding
that these rules no longer serve a useful purpose following the D.C.
Circuit's 2013 decision in Echostar. Finally, the Report and Order
eliminates the requirement that the largest cable operators submit
status reports to the Commission every 90 days that detail show the
cable operators meet ``their obligations to deploy and support
CableCARDs.'' (70 FR 36048, June 22, 2005).\13\
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\13\ 2005 Report and Order, 20 FCC Rcd at 6814-15, para. 39.
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Several commenters raised concerns that the proposed rules would be
disproportionately and significantly burdensome on small MVPDs and
asked the Commission to exempt small MVPDs from the final regulations.
The Report and Order concludes, however, that the proposed rules should
not be adopted and that the proceeding should be terminated.
Accordingly, there is no need to address these comments.
Pursuant to the Small Business Jobs Act of 2010, the Commission is
required to respond to any comments filed by the Chief Counsel for
Advocacy of the Small Business Administration, and to provide a
detailed statement of any change made to the proposed rules as a result
of those comments. The Chief Counsel filed comments expressing concern
that ``that the FCC's proposed rules will be disproportionately and
significantly burdensome for small [MVPDs]'' and urging the FCC to
``exempt small MVPDs when it finalizes its new rules.'' \14\ The Report
and Order concludes that the proposed rules should not be adopted and
that the proceeding should be terminated. Accordingly, there is no need
to respond to the comments of the Chief Counsel.
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\14\ Letter from Darryl L. DePriest, Chief Counsel for Advocacy,
U.S. Small Business Administration, Office of Advocacy, to Marlene
H. Dortch, Secretary, FCC, MB Docket No. 16-42, at 1 (June 6. 2016).
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The rule changes adopted herein will directly affect small cable
television operators by eliminating the regulatory CableCARD support
requirements.
Ordering Clauses. For the reasons stated above, it is ordered that,
pursuant to the authority found in sections 4(i), 4(j), 303(r), and 629
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), 303(r), and 549 that this Report and Order is adopted. It is
further ordered that the Commission's rules are amended as set forth
below. It is further ordered should no petitions for reconsideration or
petitions for judicial review be timely filed, CS Docket No. 97-80 and
MB Docket No. 16-42 shall be terminated and the dockets closed. It is
further ordered that the Commission shall send a copy of this Report
and Order in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 76
Administrative practice and procedure, Cable television,
Communications, Equal employment opportunity, Internet, Political
candidates, Reporting and recordkeeping requirements,
Telecommunications.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 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. Revise Sec. 76.1205 to read as follows:
Sec. 76.1205 Availability of interface information.
Technical information concerning interface parameters that are
needed to permit navigation devices to operate with multichannel video
programming systems shall be provided by the system operator upon
request in a timely manner.
[FR Doc. 2020-25143 Filed 12-3-20; 8:45 am]
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