Clyburn, McDowell Express Caution on Some of Broadband Plan

FCC members of both parties had words of caution about parts of the National Broadband Plan concerning media. Commissioner Mignon Clyburn said at Tuesday’s commission meeting that she has qualms about the reallotment of spectrum used by TV stations that the plan envisions. Commissioner Robert McDowell asked the commission to “tread gingerly” regarding set-top boxes. Blair Levin, who’s leaving the commission as the executive director of the broadband-plan work now that the document is complete, said his staff had taken concerns like Clyburn’s into account.

"I think the word voluntary speaks for itself, and I think the plan speaks for itself,” Chairman Julius Genachowski said about worries of broadcasters that they may face pressure to agree to sell spectrum in large markets where the FCC believes a shortage looms. The plan also envisions “a healthy broadcasting industry that serves viewers,” he said. He and Levin declined to say which TV station owners have expressed interest in the mobile futures auction. “I won’t reveal confidential conversations,” the chairman said. He said the FCC looks forward to “rolling up our sleeves and working with broadcasters.” The plan recommends that the commission start a rulemaking about reusing 120 MHz from TV stations, as demand for mobile broadband is “growing rapidly.” Terrestrial TV, “on the other hand, faces challenging long-term trends,” the plan says: A 58 percent decline since 1999 to 10 percent of homes viewing TV only over the air this year.

Repacking TV spectrum could free up 36 MHz, and more if technical and other rules are updated, said the plan. “Broadcasters could combine multiple TV stations onto single six-

megahertz channels,” it said at http://xrl.us/bgyvaa. “The substantial benefits of more widespread and robust broadband services would outweigh any impact from reallocation of spectrum from broadcast TV.” The plan’s goal “is to make sure that viewers of over-the-air television are well-served” after any transition, Genachowski told reporters. “Broadcasters if they want can save operating costs by sharing networks.” He declined to say how many viewers could lose reception.

Clyburn said at the meeting that she had a “few words of caution” about TV spectrum. The plan lacks “a rigorous analysis of the practical implications of its proposed actions on the public interest,” she said. “This is a serious concern, given that the broadcast spectrum is the lone spectrum through which our nation’s public interest goals are effectuated.” The document doesn’t deal with the effect of selling spectrum on stations owned by minorities and women, Clyburn said. “ It is certainly possible, if not likely, that the stations most amenable to accept the buyout would be those few owners.” A spokesman for the NAB, which has opposed spectrum reallocation, had no comment on the plan beyond a written statement issued on Monday.

Levin said “a relatively small number of broadcasters in a relatively small number of cities,” such as the 40 largest markets, could “free up a huge amount of spectrum for the country” by sharing channels. “That’s what we're driving at,” he said. “The plan goes into it in some detail. There will be some analytic work provided by the commission.” Broadband staffers have “heard the concerns from people like Commissioner Clyburn,” Levin said. “What we're talking about is avoiding the crisis in the middle part of the decade, which means that actions need to be started now but don’t need to be completed now."

Commissioner Michael Copps said improved technology doesn’t mean people are better informed. He cited a Pew finding of a 50 percent drop in network news reporting and editing capacity since the 1980s (CD March 16 p12). “The pink slips that have replaced pay stubs for so many thousands of beat journalists and the evaporating state of watchdog journalism have left us, to be frank, on a starvation diet when it comes to nourishing our democratic dialogue,” he said. New media aren’t making up for cutbacks in traditional media, he said. “ What we need urgently to avoid is seeing the same harms that have been visited upon our present-day media inflicted on the new media."

McDowell said the commission should keep history in mind as it carries out the set-top box recommendations in the plan. “Technological mandates by the government almost never result in robust innovation,” he said. “If the Commission is to act at all in this area, it [should] start with a notice of inquiry to explore whether any further action is required.” The CEA and others have sought a rulemaking notice. The NCTA has supported an FCC inquiry instead.

All subscription-video providers should install what are called gateway devices in subscribers’ homes starting before 2013, the plan said. The devices would let subscribers get all content from any pay-TV service, it said at http://xrl.us/bgyvbh. “Significant competition and innovation exist for most classes of devices that interact with broadband networks. But one class of devices has not faced substantial competition in recent years: the television set-top box.” That “limits what consumers can do and their choices to consume video, and the emergence of new uses and applications” including that which is online, the plan said. Only TiVo and Moxi still sell CableCARD-enabled set-top boxes through retailers, and in North America Cisco and Motorola accounted for 95 percent of shipments of all units in the first three quarters of last year, versus 39 percent for the top two makers for Europe, the Middle East and Asia, the report said.

"Several innovators are attempting to bring Internet video to the TV,” but “their devices often cannot access traditional TV content that consumers value -- content that is not available or difficult to access online,” the plan said. It pointed to Apple TV and Roku. “Retail set-top boxes have been competing on an uneven playing field,” the plan said. “The barriers have been well-documented in multiple proceedings and have prompted some companies not to enter the market at all.” Enforcement mechanisms against pay-TV providers that don’t comply with the gateway rules should be set out in a rulemaking, the plan said. “They could include, for example, issuing fines against non-compliant operators or denying extensions of certain CableCARD waivers like those granted for Digital Transport Adapters."

Meanwhile, the FCC should fast-track imposing rules by fall for cable operators to fix CableCARD-related problems, the plan said. The proceeding should “ensure equal access to linear channels for retail and operator-leased CableCARD devices in cable systems” with switched digital video technology by letting the devices get and send out-of-band communications with the cable headend over Internet Protocol, the plan said. It recommended “transparent pricing for CableCARDs” and devices leased by cable operators, since there’s a “lack of transparency in” how much the companies charge for boxes they lease in service bundles. Since people who buy set-top boxes from retailers “can encounter more installation and support costs and hassles” than those who lease from their provider, the plan says, there should be standardized installation policies for both types of devices.

NCTA President Kyle McSlarrow is “pleased” that the plan clearly says all multichannel video programming distributors (MVPD) must participate for the retail video device market to work, he wrote. “A gateway approach is certainly one of several approaches that should be thought through” though “technology mandates should be a last resort,” he said. “The focus on cable-

only changes is, to be candid, at odds with the effort to incentivize all-MVPD solutions, and its proposals to change the CableCARD regime seem inconsistent with the Plan’s overarching recognition (which we pointed out last year) that cable-centric CableCARDs do not appear to be the key path to success."

CEA praised the commission for addressing “many of the crucial broadband and spectrum issues that are critical to innovation and confronting the looming broadband crisis,” President Gary Shapiro said in a statement. CEA long has called for allocating additional wireless spectrum to broadband services, so it “applauds the commission’s goal of freeing 500 MHz of spectrum over the next decade,” he said. The group also hailed the agency’s plan to “accelerate its efforts to bring competition to the video device marketplace to enhance consumer choice and stimulate further broadband deployment,” Shapiro said.

The CE Retailers Coalition also praised the FCC for putting such strong emphasis in the plan on leveling the playing field for retail-based set-top boxes. The plan “rightly concludes that enhanced device competition” will promote widespread broadband adoption throughout the U.S., CERC said. “CERC supports the device competition and other inclusive broadband initiatives announced today by the FCC,” said Executive Director Chris McLean.