Last Friday, I filed comments with the FCC on the NPRM it approved in February on access to video programming after CableCARD. The filing can now be seen on the FCC’s website.

The FCC has required MVPDs (video distributors such as cable, satellite TV, and phone companies) since it passed the CableCARD mandate in 1998. This piece of work was set out for the agency by the 1996 Telecom Act’s Section 629, which directed the FCC to:

…assure the commercial availability to consumers of multichannel video programming and other services offered over multichannel video programming systems, of converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems, from manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor.

Essentially, this section and the CableCARD mandate paved the way for third party cable boxes, DVRs, and smart  TVs that could connect directly to cable TV networks, more or less analogous to the Carterfone mandate that created markets for modems and telephone handsets.  The Carterfone mandate is largely viewed as a resounding success, but it probably did prevent the US from upgrading its telephone network from analog to digital because it created an explosion in consumer-owned analog devices. But now that we’ve dumped the analog phone network for mobile and broadband, that doesn’t matter.

Unlike Carterfone, CableCARD has been a failure. It works well enough, the MVPDs support it, and there have been dozens of devices on the market at various times with CableCARD capabilities, but consumers aren’t interested. While lots of people like to complain about the rental fees on set-top boxes, very few have been willing to buy devices on the aftermarket enabled by CableCARD. I’m one of a very small number of people who do use it;  I haven’t had a cable company box in my house for 15 years and I’ve never missed a show because I use a TiVo Roamio and a SiliconDust HD Homerun Prime to watch TV on the Comcast network.

But CableCARD devices have problems. The TiVo is ridiculously expensive because the company charges as much as $15 a month for the service in addition to the price of the box, and marks up hard drives the way Apple does, at several multiples of the market rate. So you buy a TiVo with the smallest hard drive the company offers and upgrade it yourself.

SiliconDust is in trouble because it relies on Windows Media Center to provide DVR capabilities, and Microsoft has simply dropped support for MWC in Windows 10. So the first time you accept the free upgrade to Windows 10 you lose your ability to use a PC as a home theater device.

The NPRM admits that CableCARD has been a failure: ““approximately 99 percent of customers rent[] their set-top box directly from their pay-TV provider [NPRM, ¶13].” Congress also recognizes that CableCARD hasn’t created a market for video devices; in the recent STELAR bill, H.R.5728 – STELA Reauthorization Act of 2014, Congress directed the FCC to convene a panel of technical experts to develop alternatives to CableCARD and rescinded the “integration ban” that locked in CableCARD logic to cable boxes.

Specifically, STELAR asked for a CableCARD  replacement that is “…not unduly burdensome, uniform, and technology- and platform neutral software-based downloadable a security system designed to promote the competitive availability of navigation devices in furtherance of section 629 of the Communications Act of 1934 (47 U.S.C. 549)…” Toward that end, the FCC convened a panel of experts called the “Downloadable Security Technical Advisory Committee”, DSTAC. The FCC being what it is, some lobbyists were also included in DSTAC.

The FCC’s NPRM does not deliver the goods. It actually keeps the CableCARD mandate in place (“We tentatively conclude that [CableCARD] rules continue to serve a useful purpose and propose to retain them in our rules” [NPRM, ¶87] and supplements it with a poorly developed software-based plan that appears to be a giveaway to some of the agency’s favorite special interests; mainly Google, TiVo, and Public Knowledge, the firm founded by Chairman Wheeler’s advisor Gigi Sohn.

DSTAC delivered a pair of proposals, one supported by the technical experts and the other led by a lobbyist hired by Public Knowledge. The expert proposal uses the actual technical standards embodied in the apps created by three cable companies to stream TV content to Roku devices. These apps transport the cable companies’ user interfaces to Roku, just like the Roku implementation of Netflix includes the Netflix UI and not something Roku dreamt up on its own.

The Google/TiVo/Public Knowledge proposal, known as “Media Server,” relies on standards that don’t exist, however. Brimming with confidence that these standards will be created in the next year. the NPRM proposes to mandate support for them in three years. The timeline is troublesome in its own right.

But the issue I emphasized in my comments is the disconnect between keeping the CableCARD mandate and mandating support for this squishy software alternative. If the agency were truly confident that the missing standards can be created and implemented, there would be no reason not to grandfather CableCARD. According to the NPRM, Media Server is a superior alternative that will allow all manner of video streaming devices (Apple TV, Amazon Fire, Google ChromeCast, and Roku) to access live video without any hassle.

By unbundling video content from program guides and other indexes, it will allow innovators to search for content across services such as Netflix, Hulu, and the MVPDs. It will adequately protect video copyright and make piracy unnecessary. So if this Media Server is so all-fired wonderful, why can’t the FCC see the wisdom of relegating CableCARD to the trash bin of history?

I can only speculate that the reason the FCC is saying one thing (“Media Server is wonderful”) and doing another (keeping CableCARD) is that it knows the Media Server scheme may not work at all and will probably not survive court challenge because it runs roughshod over the intellectual property rights of content creators. The FCC doesn’t want to be caught in the position where neither of the two options is operative. The NPRM is belt and suspenders because the suspenders are weak.

So I argue for reconvening DSTAC and asking for a consensus approach that relies on existing standards. You can read the comment to see what I believe those standards are.  It’s only eight pages long but the answer is pretty simple; so simple, in fact, that it’s already on the market.