Overturn FCC Integration Ban Order, Cable Tells Court
The FCC was “arbitrary and capricious” last March when it reaffirmed a ban on cable deployment of integrated set-top-boxes without putting similar burdens on cable’s DBS rivals, Advance/Newhouse and Charter Communications said last week in a brief with the U.S. Appeals Court, D.C. The MSOs’ petition seeks to have the Commission’s integration ban order vacated.
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NCTA, which backs the petition, is due to file a brief Jan. 11. CEA, which opposes it, has until Feb. 27 to do the same, under a court-imposed schedule. NCTA sought last year to have the FCC kill the integration ban, in the end winning a one-year extension to July 2007 for cable operators to develop a downloadable security alternative.
Consumer Electronics (CE) interests fought unsuccessfully to preserve the July 2006 integration ban with no deadline extensions, but did get the FCC to require that cable report regularly on the progress of CableCARD deployment. Two such reports have been filed, the latest estimating that 100,000-plus CableCARDs would be deployed by Dec. 31, 2005. Cable has hailed the speed of CableCARD commercialization, but CE has alleged that CableCARDs would have been more widely available if not for cable’s foot-dragging.
Arguing to vacate the integration ban, cable said the FCC failed “to provide a reasoned justification for a rule that its own order indicates will cost consumers more than they will save, and whose supposed benefits are already being secured by other, less costly means.” Cable’s brief said: “While the integration ban purports to assure that cable operators will provide adequate support to navigation devices made by 3rd parties… cable companies have already been required to do so” by separate plug-&- play rules imposed by the Commission.
No matter what an integration ban’s merits, it should be thrown out, the brief argued. The rule “clearly fails,” since the FCC decided to apply the ban to cable, but not its largest DBS competitors, it said. The Commission “completely failed to consider whether the intense competition in the video market effectively requires service providers to respond to consumer demand, without the need for further imposition of the integration ban,” the brief said. Central to the cable argument recurring through the brief is that the integration ban “is an unlawful and irrational application” of a ban by Congress on regulations that prohibit multichannel video program distributors (MVPDs) from offering navigation devices.
“The irony here is that cable is appealing the FCC’s March 2005 action, which was undertaken at cable’s behest,” based on meetings in Sept. 2004 and later, Julie Kearney, CEA senior dir. and regulatory counsel, told us. “The decision in March 2005 was of enormous benefit to cable -- they got the extension they requested,” she said. Cable’s petition to have the March 2005 order vacated “is a slap in the face to the FCC,” Kearney said.