August 19, 2016 Ms. Marlene H. Dortch Secretary, Federal
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Suite 800 1919 Pennsylvania Ave. NW Washington, D.C. 20006-3401 Paul Glist 202-973-4220 202-973-4475 fax [email protected] August 19, 2016 Ms. Marlene H. Dortch Secretary, Federal Communications Commission 445 12th Street S.W. Washington, DC 20554 Re: Expanding Consumers’ Video Navigation Choices, MB Docket No. 16-42, Commercial Availability of Navigation Devices, CS Docket No. 97-80 Dear Ms. Dortch: The National Cable & Telecommunications Association (NCTA) hereby submits this response to recent ex parte notices filed in the above-captioned proceedings by critics who would rather that MVPD services and programmer content not be protected by MVPD apps and licenses but instead be more readily exposed to their own commercial exploitation and monetization.1 The ex partes misstate and then profess to critique the HTML5 apps approach proposed by diverse independent programmers and multichannel video programming distributors (MVPDs) on June 15, 2016 as an alternative means for making MVPD services available to 1 Such ex partes have been submitted by Public Knowledge, the Computer & Communications Industry Association (CCIA), INCOMPAS, Hauppauge Computer Works, Amazon, the Electronic Frontier Foundation and TiVo. See Letter from John Bergmayer, Public Knowledge, to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (July 20, 2016) (“Public Knowledge July 20, 2016 Ex Parte”); Letter from John Bergmayer, Public Knowledge, to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (July 29, 2016) (“Public Knowledge July 29, 2016 Ex Parte”); Letter from John A. Howes, Jr., Computer & Communications Industry Association (CCIA), to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (July 28, 2016) (“CCIA July 28 Ex Parte”); Letter from Christopher L. Shipley, INCOMPAS, to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (August 2, 2016) (“INCOMPAS August 2, 2016 Ex Parte”); Letter from Robert S. Schwartz, Hauppauge Computer Works, Inc., to Marlene H. Dortch, FCC, MB Docket. No. 15-64, CS Docket No. 97-80 (August 3, 2016) (“Hauppauge August 3, 2016 Ex Parte”); Letter from Gerard J. Waldron, Amazon.com, to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (July, 15 2016) (“Amazon July 15, 2016 Ex Parte”); Letter from Gerard J. Waldron, Amazon.com, to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (August 4, 2016) (“Amazon August 4, 2016 Ex Parte”); Letter from Ernesto Falcon, Electronic Frontier Foundation (EFF), to Marlene H. Dortch, MB Docket No. 16-42, CS Docket No. 97-80 (August 2, 2016) (“EFF August 2, 2016 Ex Parte”); Letter from Devendra T. Kumar, TiVo Inc., to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (August 8, 2016) (“TiVo August 8, 2016 Ex Parte”). CCIA’s August 18, 2016 ex parte submitting its “Unlock the Box” paper reiterates the same misstatements and erroneous claims as these earlier ex partes. This response also addresses an ex parte recently submitted by Roku. Letter from Trey Hanbury, Roku, Inc., to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (August 5, 2016) (“Roku August 5, 2016 Ex Parte”). Ms. Marlene H. Dortch August 19, 2016 Page 2 retail navigation devices.2 These critics continue to propose complex technology regulations designed to meet their goal of converting copyrighted content into open-source programming for their own commercial use and monetization. Their recommendations would undermine copyright as thoroughly explained by the U.S. Copyright Office,3 violate consumer video privacy, and impose staggering costs on consumers, networks, program diversity, and innovation.4 Programmers have explained that the MVPD services that include their licensed content must be protected by MVPD apps and MVPD licenses. As CBS explained, using MVPD apps “would help ensure that our valuable content and services remain inside of, and under the control of, MVPDs with whom we have a direct contractual relationship for the distribution of our product.” 5 Likewise, Fox seeks to “ensure that all of Fox’s and other programmers’ valuable content would remain inside of, and under the control of, apps developed exclusively by multichannel video programming distributors (MVPDs) with whom programmers have a direct contractual relationship.”6 Both explained that any retail device must execute a license under the control of the MVPD and drafted exclusively by MVPDs and programmers. As CBS puts it, “it is critical that any license that a third party need execute to host an app be one that has been drafted exclusively by MVPDs and programmers, as it is our services and content that is being licensed.”7 It further explained its “support for the approach that provides that programming at all times remain inside of an MVPD-controlled app and that honors the sanctity of our contracts and content rights.”8 Fox explained that “a rule construct in which programming at all times remains inside of an MVPD-controlled app … was the only way of ensuring that the security of content is not jeopardized.”9 CBS explained that this apps-based approach “would also mean that third-party 2 Letter from Vme TV, Revolt TV, TV One, AT&T-DIRECTV, Comcast, and NCTA to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (June 16, 2016). 3 Letter from Maria A. Pallante, United States Register of Copyrights and Director, United States Copyright Office, to Rep. Marsha Blackburn, Vice Chairman, Rep. G.K. Butterfield, Energy and Commerce Committee, and Rep. Doug Collins and Rep. Ted Deutch (August 3, 2016), available at http://blackburn.house.gov/uploadedfiles/co_set- top_letter.pdf (“Copyright Office August 3, 2016 Letter to Congress”). 4 See NCTA Comments at 41-59, 75-118, 129-141; NCTA Reply Comments at 9-20, 49-50; NCTA Rebuttal Comments at 6-29. 5 Letter from Anne Lucey, CBS Corporation, to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (August 12, 2016) at 1 (“CBS August 12, 2016 Ex Parte”). 6 See Letter from Jared S. Sher, Senior Vice President and Associate General Counsel, 21st Century Fox, Inc., to Marlene H. Dortch, Secretary, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (August 8, 2016) at 1 (“Fox August 8, 2016 Ex Parte”). 7 CBS August 12, 2016 Ex Parte at 2. 8 CBS August 12, 2016 Ex Parte at 2. 9 Fox August 8, 2016 Ex Parte at 1. Ms. Marlene H. Dortch August 19, 2016 Page 3 devices and platforms would have to honor and abide by all the terms and conditions set forth in programmers’ agreements with MVPDs.”10 The HTML5 apps solution provides a straightforward, practical and achievable means for providing consumers with choices in navigation devices while protecting the rights of copyright owners, the privacy rights of consumers, and the ability of all participants to innovate. The HTML5 apps-based proposal – if adopted by the Commission – would impose an industry-wide obligation on all large MVPDs to use the W3C’s open international standard HTML5 platform to develop and deploy video “apps” on smart TVs, video devices and other customer-owned navigation devices. It would allow customers to search for video content from both multichannel and online streaming services through their retail devices’ integrated search interfaces in ways that are consistent with program licensing agreements between content providers and MVPDs. It would allow any retail device manufacturer that includes HTML5 to receive the multichannel services offered and provided by all of the largest MVPDs, even if the device did not support the MVPD native apps currently in wide use on popular platforms such as Android, iOS and Roku. In its NPRM, the Commission sought to go beyond native apps. Rather than requiring manufacturers to “build a single device that is compatible with all of the approaches” used by different native apps, it sought a solution that would allow a manufacturer to build to a common standard that would “allow consumers to use the same device with different MVPDs throughout the country.”11 The HTML5 app solution meets that goal by offering a common-denominator app enabling any manufacturer to build a nationally portable device that can receive service from all of the large MVPDs, while continuing to support the market for business-to-business agreements and native apps. Because the HTML5 apps solution is based on actual technology directions and the most recent global open standards, the largest MVPDs are able to offer a commitment to bring it to market within two years. And because the HTML5 proposal is sensitive to the needs of smaller operators facing different technical, operating, and financial circumstances, the proposal would include at least the same exemption for operators with fewer than one million subs that TiVo 12 proposed for smaller operators. 10 CBS August 12, 2016 Ex Parte at 1. Time Warner, Inc. has likewise opposed any “framework [that] would require MVPDs to disassemble their service into flows of data to third parties, thereby effectively creating a compulsory license to third parties that would create a significant risk that the terms on which the content was licensed to MVPDs would not be protected.” Letter from Kyle Dixon, Time Warner, Inc., to Marlene H. Dortch, FCC, MB Docket No. 16-42, CS Docket No. 97-80 (June 30, 2016). 11 NPRM at ¶¶31, 48. 12 The exemption would moot the concerns expressed by ACA, ITTA and NTCA and permit them to devote their limited resources to other pressing needs without any adverse impact on development of a retail market for navigation devices.