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weight (in amu) of 5,500 (CAS Reg. No. Reduction Act (PRA) information have progressed to sending content 9010–77–9) when used as an inert collection requirements contained throughout the home network via IP. ingredient in pesticide formulations herein should be submitted to the This standardization and increasing under 40 CFR 180.960. The petitioner Federal Communications Commission reliance on IP allows for software believes no analytical method is needed via email to [email protected] and to solutions that, with ground rules to because it is not required for an Nicholas A. Fraser, Office of ensure a necessary degree of exemption from the requirement of a Management and Budget, via email to convergence, will make it easier to tolerance. Contact: RD. [email protected] or via finally fulfill the purpose of Section Authority: 21 U.S.C. 346a. fax at 202–395–5167. 629. FOR FURTHER INFORMATION CONTACT: The regulatory and technological path Dated: March 10, 2016. For additional information on this to this proceeding reflects a long Daniel J. Rosenblatt, proceeding, contact Brendan Murray, history. It begins with the Acting Director, Registration Division, Office [email protected], of the Media Telecommunications Act of 1996, when of Pesticide Programs. Bureau, Policy Division, (202) 418– Congress added Section 629 to the [FR Doc. 2016–05952 Filed 3–15–16; 8:45 am] 1573. Contact Cathy Williams, Communications Act. Section 629 BILLING CODE 6560–50–P [email protected], (202) 418–2918 directs the Commission to adopt concerning PRA matters. regulations to assure the commercial availability of devices that consumers SUPPLEMENTARY INFORMATION: Congress use to access multichannel video FEDERAL COMMUNICATIONS adopted section 629 of the programming and other services offered COMMISSION Communications Act in 1996, and since over multichannel video programming then each era of technology has brought 47 CFR Part 76 networks. Section 629 goes on to state unique challenges to achieving Section that these devices should be available [MB Docket No. 16–42; CS Docket No. 97– 629’s goals. When Congress first from ‘‘manufacturers, retailers, and 80; FCC 16–18] directed the Commission to adopt other vendors not affiliated with any regulations to assure a commercial Expanding Consumers’ Video multichannel video programming market for devices that can access Navigation Choices; Commercial distributor.’’ It also prohibits the multichannel video programming, the Availability of Navigation Devices Commission from adopting regulations manner in which MVPDs offered their that would ‘‘jeopardize security of AGENCY: Federal Communications services made it difficult to achieve the multichannel video programming and Commission. statutory purpose. Cable operators used other services offered over multichannel ACTION: Proposed rule. widely varying security technologies, video programming systems, or impede and the best standard available to the SUMMARY: In this document, we propose the legal rights of a provider of such Commission was the hardware-based services to prevent theft of service.’’ In new rules to empower consumers to CableCARD standard—which the cable choose how they wish to access the enacting the section, Congress pointed and consumer electronics industries to the vigorous retail market for multichannel video programming to jointly developed—that worked only which they subscribe, and promote customer premises equipment used with with one-way cable services. In 2010, the telephone network and sought to innovation in the display, selection, and the Commission sought comment on a use of this programming and of other create a similarly vigorous market for new approach that would work with devices used with services offered over video programming available to two-way services, but still only a consumers. We take steps to fulfill our MVPDs’ networks. hardware solution would work because The Commission first adopted rules to obligation under section 629 of the software-based security was not implement Section 629 in 1998, just as Communications Act to assure a sophisticated enough to meet content ‘‘the enormous technological change commercial market for devices that can companies’ content protection demands. resulting from the movement from access multichannel video programming This concept, called ‘‘AllVid,’’ would analog to digital communications [was] and other services offered over have allowed electronics manufacturers underway.’’ The Commission set multichannel video programming to offer retail devices that could access fundamental ground rules for consumer- systems. We propose rules intended to multichannel video programming, but owned devices and access to services allow consumer electronics would have required all operators to put offered over multichannel video manufacturers, innovators, and other a new device in the home between the programming systems. The rules developers to build devices or software network and the retail or leased set-top established (1) manufacturers’ right to solutions that can navigate the universe box. Now, as MVPDs move to Internet build, and consumers’ right to attach, of multichannel video programming Protocol (‘‘IP’’) to deliver their services any non-harmful device to an MVPD with a competitive user interface. We and to move content throughout the network, (2) a requirement that MVPDs also seek comment on outstanding home, those difficulties are gone. Today, provide technical interface information issues related to our CableCARD rules. MVPDs provide ‘‘control channel’’ data so manufacturers, retailers, and DATES: Submit comments on or before that contains (1) the channels and subscribers could determine device April 15, 2016. Submit reply comments programs they carry, (2) whether a compatibility, (3) a requirement that on or before May 16, 2016. Written consumer has the right to access each of MVPDs make available a separate comments on the Paperwork Reduction those channels and programs, and (3) security element that would allow a set- Act proposed information collection the usage rights that a consumer has top box built by an unaffiliated requirements must be submitted by the with respect to those channels and manufacturer to access encrypted public, Office of Management and programs. Many MVPDs already use multichannel video programming Budget (OMB), and other interested Internet Protocol (‘‘IP’’) to provide this without jeopardizing security of parties on or before May 16, 2016. control channel data. Moreover, most programming or impeding the legal ADDRESSES: In addition to filing MVPDs have coalesced around a few rights of MVPDs to prevent theft of comments with the Secretary, a copy of standards and specifications for delivery service, and (4) the integration ban, any comments on the Paperwork of the video content itself, and many which required MVPDs to commonly

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rely on the separated security in the The Commission sought comment on for equipment, including software, that devices that they lease to subscribers. this AllVid concept in a Notice of can access multichannel video The Commission did not initially Inquiry but ultimately decided not to programming. A recent news report on impose a specific technical standard to propose rules to mandate it. this topic summarized the issue achieve these rules, but instead adopted In late 2014, Congress passed succinctly: ‘‘some consumer advocates rules that relied ‘‘heavily on the STELAR. Section 106 of that law had wonder why, if you do want a set-top representations of the various interests two main purposes: First, it eliminated box, you can’t just buy one as easily as involved that they will agree on relevant the integration ban as of December 4, you’d buy a cell phone or TV for that specifications, interfaces, and standards 2015, and second, it directed the matter.’’ Before MVPDs transitioned to in a timely fashion.’’ Chairman of the Commission to appoint digital service, it was easy for In December 2002, the cable and an advisory committee of technical consumers to buy televisions that consumer electronics industries adopted experts to recommend a system for received cable service without the need a Memorandum of Understanding downloadable security that could for a set-top box. In 1996, Congress regarding a one-way plug-and-play advance the goals of section 629. The recognized that we were on the cusp of ‘‘CableCARD’’ compatibility standard Chairman appointed 19 members to the a digital world with diverging system for digital cable. In October 2003, the Downloadable Security Technical architectures. To address this, Congress Commission adopted the CableCARD Advisory Committee (‘‘DSTAC’’), and adopted Section 629, and the standard as part of the Commission’s the committee submitted its report to Commission implemented that section rules, and consumer electronics the Commission on August 28, 2015. of the statute by separating the parts of manufacturers brought unidirectional The DSTAC Report gave an account of cable system architectures that were not CableCARD-compatible devices to the increasing number of devices on consistent among systems into a module market less than a year later. At least six which consumers are viewing video called a CableCARD that cable operators million (and by one report, over 15 content, including laptops, tablets, could design to work with their system- million) CableCARD devices were built phones, and other ‘‘smart,’’ Internet- specific technology. This module and shipped, but the nine largest connected devices. The DSTAC Report converted system-specific aspects into a incumbent cable operators have pointed to two main reasons for this standardized interface; this deployed only 618,000 CableCARDs for shift: (1) Software-based applications standardized interface allowed a use in consumer-owned devices. These have made it easier for content manufacturer to build a single device rules drove innovations that consumers providers to tailor their services to run that could work with cable systems value greatly today: High-definition on different hardware, and (2) there are nationwide, despite their divergent digital video recording, competitive user an increasing number of software-based technologies. Today, the world is interfaces that provided more program content protection systems that converging again, this time around IP to information to viewers, the ability to set copyright holders are comfortable provide control channel data, in some recordings remotely, the incorporation relying on to protect their content. The cases also using IP for content delivery of Internet content with cable content, Media Bureau released a Public Notice over MVPD systems, and in many cases and automatic commercial skipping on seeking comment on the DSTAC Report using IP for content delivery throughout cable content. Throughout the mid-to- on August 30, 2015. The DSTAC Report the home. Standards will allow us to late 2000s, cable operators increasingly and comments that we received in develop, and MVPDs to follow, ground transitioned their systems to digital and response to it underlie and inform our rules about compatibility that are introduced interactive video services Notice of Proposed Rulemaking. technology-neutral: The rules will allow such as video-on-demand and content The DSTAC Report offered two MVPDs to upgrade their networks freely delivery methods such as switched proposals regarding the non-security and any changes that a navigation digital video. The Commission’s elements and two proposals regarding device needs to conform to those CableCARD rules and the Memorandum the security elements of a system that changes can be supplied via software of Understanding did not prescribe could implement section 629. For the download rather than upgrading methods for retail devices to access non-security elements, the DSTAC consumers’ hardware. The ground rules those interactive services, and therefore Report presented both an MVPD- we propose in this Notice of Proposed retail CableCARD devices could not supported proposal that is based on Rulemaking are designed to let MVPD access cable video-on-demand services. proprietary applications and would Moreover, cable operators generally allow MVPDs to retain control of the subscribers watch what they pay for offered poor CableCARD support, which consumer experience, and a consumer wherever they want, however they made it much more difficult for electronics-supported proposal that is want, and whenever they want, and pay consumers to set up a retail device than based on standard protocols that would less money to do so, making it as easy a leased device. let a competing device or application to buy an innovative means of accessing In 2010, the Commission took steps to offer a consumer experience other than multichannel video programming (such remedy problems with the CableCARD the one the MVPD offers. With respect as an app, smart TV, or set-top box) as regime. The Commission adopted to security, the DSTAC Report presented it is to buy a cell phone or TV. additional CableCARD-related rules to both an MVPD-supported proposal As discussed below, our proposed improve cable operator support for retail based on digital rights management rules are based on three fundamental CableCARD devices. The Commission (similar to what Internet-based video points. First, the market for navigation also sought comment on a successor services use to protect their video devices is not competitive. Second, the technology in the form of a content), and a consumer electronics- few successes that developed in the Commission-designed, standardized supported proposal based on link CableCARD regime demonstrate that converter box that would be designed to protection (similar to how content is competitive navigation—that is, allow ‘‘any electronics manufacturer to protected as it travels from a Blu-ray competition in the user interface and offer smart video devices at retail that player to a television set). complementary features—is essential to can be used with the services of any In this Notice of Proposed achieve the goals of Section 629. Third, MVPD and without the need to Rulemaking, we propose rules that are entities that build competitive coordinate or negotiate with MVPDs.’’ intended to assure a competitive market navigation devices, including

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applications, need to be able to build devices as their sole means of accessing to the MVPD’s user interface rather than those devices without seeking multichannel video programming? We that of the competitive device. permission from MVPDs, because seek specific numbers from MVPDs on Some argue that these business-to- MVPDs offer products that directly the number of and percentage of their business deals are essential to ensure compete with navigation devices and subscribers who use such devices as that the few independent, diverse therefore have an incentive to withhold their sole means of accessing programmers that currently exist can permission or constrain innovation, multichannel video programming continue to survive because they ensure which would frustrate Section 629’s without any MVPD-owned equipment that those programmers can rely on the goal of assuring a commercial market for in the subscriber’s home. How do these channel placement and advertising navigation devices. numbers compare to other commercial agreements that they have contracted for The Need for Rules. Today, markets for consumer electronics? with the MVPD. We disagree with this consumers have few alternatives to MVPDs may have several incentives assertion, and believe that competition leasing set-top boxes from their MVPDs, for maintaining control over the user in interfaces, menus, search functions, and the vast majority of MVPD interface through which consumers and improved over-the-top integration subscribers lease boxes from their access their multichannel video will make it easier for consumers to find MVPD. In July 2015, Senators Ed programming service, but for the and watch minority and special interest Markey and Richard Blumenthal reasons we provide below, we believe programming. In addition, our goal is to reported statistics that they gathered that the Act requires competitive preserve the contractual arrangements from a survey of large MVPDs: navigation that would allow third between programmers and MVPDs, ‘‘approximately 99 percent of customers parties to develop innovative ways to while creating additional opportunities rent[ ] their set-top box directly from access multichannel video for programmers, who may not have an their pay-TV provider, [and] the set-top programming. We seek comment on arrangement with an MVPD, to reach box rental market may be worth more those incentives. For example, how do consumers. We seek comment on this than $19.5 billion per year, with the MVPDs profit from their control of the analysis. We also seek specific comment on the average American household spending user interface? Do MVPDs track process that an MVPD uses to decide more than $231 per year on set-top box consumer viewing habits, and if so, do whether to allow such a device to access rental fees.’’ There is evidence that they profit in any way as a result of that its services. Have retail navigation increasingly consumers are able to tracking (for example, by using the device developers asked MVPDs to access video service through proprietary information to sell advertising or selling MVPD applications as well. According develop applications for their devices the information to ratings analytics to NCTA, consumers have downloaded and been denied? Have MVPDs asked companies)? What are the profit margins MVPD Android and iOS applications navigation device developers to carry for selling that data? How long does a more than 56 million times, more than their applications and been denied? Do typical consumer lease a MVPD set-top 460 million IP-enabled devices support programmers prohibit MVPDs from box before it is replaced? What are one or more MVPD applications, and 66 displaying their programming on certain MVPDs’ profit margins on set-top boxes? percent of them support applications devices? If so, what are the terms of Do MVPDs leverage their user interfaces from all of the top-10 MVPDs. These those prohibitions? Should the to sell other services offered over statistics show, however, that almost all Commission ban such terms to assure multichannel video programming consumers have one source for access to the commercial availability of devices the multichannel video programming to systems, e.g. home security? Do MVPDs that can access multichannel video which they subscribe: The leased set-top offer integrated search across their programming, and under what box, or the MVPD-provided application. multichannel video programming and authority? Are ‘‘premium features and Therefore, we tentatively conclude that other unaffiliated video services, and if functions’’ of devices such as televisions the market for navigation devices is not not why not? and recording devices limited due to competitive, and that we should adopt In addition, in today’s world a retail ‘‘cable scrambling, encoding, or new regulations to further Section 629. navigation device developer must encryption technologies?’’ If so, could We invite comment on this tentative negotiate with MVPDs to get permission we adopt the rules we propose below conclusion. to provide access to the MVPD’s pursuant to our authority under Section Certain MVPD commenters argue that multichannel video programming, on 624A of the Act? the market for devices is competitive the MVPD’s terms. These business-to- As noted above, it appears that and that we need not adopt any new business arrangements are a step in the consumers have downloaded regulations to achieve Section 629’s right direction for consumers because proprietary MVPD applications many directive. They argue that the popularity the arrangements have increased the times; we seek comment on whether of streaming devices such as Amazon universe of devices they can use to consumers actually use those Fire TV, AppleTV, Chromecast, Roku, receive service. The arrangements have applications to access multichannel assorted video game systems, and not assured a competitive retail market video programming. Section 629 directs mobile devices that can access over-the- for devices from unaffiliated sources as us to adopt regulations to assure the top services such as Netflix, Amazon required by section 629 because they do commercial availability of ‘‘equipment Instant Streaming, and Hulu, shows that not always provide access to all of the used by consumers to access Congress’s goals in section 629 have programming that a subscriber pays to multichannel video programming.’’ been met. We disagree. With certain access, and may limit features like MVPDs argue that their proprietary limited exceptions, it appears that those recording. In other words, these applications are used by consumers to devices are not ‘‘used by consumers to business-to-business arrangements— access multichannel video access multichannel video typically in the form of proprietary programming; to better evaluate this programming,’’ and are even more rarely apps—do not offer consumers viable argument, we seek further comment on used as the sole means of accessing substitutes to a full-featured, leased set- usage rates of those proprietary MVPDs’ programming. We seek top box. Moreover, these relationships applications. What percentage of comment on this point. Which MVPDs are purely at the discretion of the MVPD consumers use MVPD applications to allow their subscribers to use these and, to date, have only provided access view programming one month after

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downloading an application? How many and accordingly we seek comment on communications equipment and other hours per month, on average, does a differences in DBS delivery or system equipment—include both hardware and consumer use an MVPD application to architecture that should inform our software technologies. Certain functions view programming, compared to proposed rules set forth below. can be performed interchangeably by consumers’ use of leased boxes? How Authority. We tentatively conclude either hardware, software, or a many MVPDs make their full channel that the Commission has legal authority combination of both. Congress lineups available via applications? Do to implement our proposed rules. recognized this in the STELAR, which any MVPDs allow consumers to access Section 629 of the Act, entitled called for a study of downloadable multichannel video programming, ‘‘Competitive Availability of Navigation software approaches to security issues beyond unencrypted signals, without Devices,’’ directs the Commission to previously performed in hardware. To leasing or purchasing some piece of ‘‘adopt regulations to assure the fully and effectively implement Section MVPD equipment? How many commercial availability . . . of 629 as Congress intended, we propose to consumers that lease a set-top box also converter boxes, interactive interpret these terms to cover both the use an MVPD application? How many communications equipment, and other hardware and software aspects of consumers view multichannel video equipment used by consumers to access navigation equipment. This is consistent programming only via a proprietary multichannel video programming and with our interpretation of other sections MVPD application, without leasing a other services offered over multichannel of the Act that use the term box? Are proprietary MVPD video programming systems, from ‘‘equipment’’, which we have applications available on all platforms manufacturers, retailers, and other interpreted to include both hardware and devices? Or do MVPDs enter into vendors not affiliated with any and software. The Commission derived agreements with a limited number of multichannel video programming its definition of the term ‘‘navigation manufacturers or operating system distributor.’’ We propose to interpret the devices’’ in our current rules from the vendors? terms ‘‘manufacturers, retailers, and text of section 629, and we propose to other vendors’’ broadly to include all Section 629 and DBS Providers. In the interpret that term consistent with both hardware manufacturers, software First Plug and Play Report and Order, the language and intent of the statute, as developers, application designers, the Commission exempted DBS described above. system integrators, and other such providers from our foundational We interpret the phrase entities that are not affiliated with any ‘‘manufacturers, retailers, and other separation of security requirement MVPD and who are involved in the because ‘‘customer ownership of development of navigation devices or vendors not affiliated with any satellite earth stations receivers and whose products enable consumers to multichannel video programming signal decoding equipment has been the access multichannel video programming distributor’’ in section 629 to mean norm in the DBS field.’’ This meant that over any such device. We believe a broadly ‘‘entities independent of DBS was also exempt from most of the broad interpretation is necessary to MVPDs,’’ such that our rules must rules that the Commission adopted in ensure that these third parties are ensure the availability of Navigation the Second Plug and Play Order. provided the information they need Devices from entities that have no Unfortunately, in the intervening years from MVPDs to facilitate the business relationship with any MVPD the market did not evolve as we commercial development of competing for purposes of providing the three expected; in fact, from a navigation navigation technologies in order to Information Flows that we discuss device perspective, it appears that the fulfill the goals of section 629. below. We believe that this market for devices that can access DBS The Act does not define the terms interpretation best aligns with multichannel video programming has ‘‘navigation device’’ or ‘‘interactive Congressional intent, as reflected in the devolved to one that relies almost communications equipment, and other legislative history of the exclusively on equipment leased from equipment,’’ but we believe that Telecommunications Act of 1996. the DBS provider. Accordingly, to Congress intended the terms to be far Namely, the House Report states that the implement the requirements of section broader than conventional cable boxes statute was intended to encourage the 629 fully, we tentatively conclude that or other hardware alone; Section 629 is availability of equipment from a any regulations we adopt should apply plainly written to cover any equipment ‘‘variety of sources’’ and ‘‘various to DBS. We seek comment on this used by consumers to access distribution sources’’ to assure that tentative conclusion. We also seek multichannel video programming and consumers can buy a variety of non- comment on the availability of DBS other services, and software features proprietary devices. Moreover, we do equipment at retail. Has the state of the have long been essential elements of not believe that the goals of section 629 marketplace changed since 1998, when such equipment. Exercising our would be met if the commercial market the Commission had observed an authority to interpret ambiguous terms consisted solely of Navigation Devices ‘‘evolving’’ competitive market for DBS in the Communications Act, we built by developers with a business-to- equipment and, if so, to what extent? In tentatively conclude that these terms business relationship with an MVPD, addition to our authority under section include both the hardware and software because such an approach would not 629, we seek comment on our authority (such as applications) employed in such lead to Navigation Device developers under section 335 to adopt any of the devices that allow consumers to access being able to innovate independently of rules we propose below or any other multichannel video programming and MVPDs. We seek comment on this rules related to competition in the other services offered over multichannel interpretation. Does it take proper market for devices that can access DBS video programming systems. We believe account of the fact that even some multichannel video programming, this interpretation best serves the intent Navigation Device developers that rely which would serve the public interest. of Congress as reflected in the legislative on the three Information Flows to Finally, we recognize the ‘‘weirdness of history, which directs, among other provide access to MVPD service may satellite’’ that the DSTAC emphasized in things, that we ‘‘should take cognizance have other business relationships with this context because the DBS systems of the current state of the marketplace.’’ MVPDs unrelated to the provision of cannot assume that bidirectional In today’s marketplace, ‘‘navigation navigation devices? Are there other communication is available in all cases, devices’’—i.e., interactive interpretations that can assure a

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competitive market as Congress programming. This interpretation is in first obtaining approval from MVPDs or intended? line with our current rules, which led to organizations they control. Senators We seek comment on this statutory the creativity and consumer benefits of Markey and Blumenthal found that analysis. Are there other sources of the CableCARD regime. We also believe MVPDs take in approximately $19.5 Commission authority to adopt the that the goals of section 629 will not be billion per year in set-top box lease fees, proposed rules? For example, we invite met absent Commission action, given so MVPDs have a strong financial commenters to discuss the MVPDs’ incentive to limit competition. incentive to use an approval process to Commission’s authority under Sections As we begin to craft rules that will meet prevent development of a competitive 624A and 335 of the Act and any other our 629 obligations, there are seven commercial market and continue to relevant statutory provisions. objectives that seem paramount to our require almost all of their subscribers to Alternatively, should we modify our effort. lease set-top boxes. definition of ‘‘navigation devices’’ to First, consumers should be able to Fourth, unaffiliated vendors must treat software on the device (such as an choose how they access the implement content protection to ensure application) that consumers use to multichannel video programming to that the security of MVPD services is not access multichannel video programming which they subscribe (e.g., through the jeopardized, and must respect licensing and other MVPD services as a MVPD-provided user interface on an terms regarding copyright, entitlement, ‘‘navigation device,’’ separate and apart MVPD-provided set-top box or app, and robustness. This will ensure parity from the hardware on which it is through a set-top box offered by an between MVPD-provided and running? For example, we seek unaffiliated vendor, or through an competitive navigation devices. comment on whether we should add a application or search interface offered Fifth, our rules should be technology sentence to our definition of ‘‘navigation by an unaffiliated vendor on a device neutral, permitting both software (e.g., devices’’ that states, ‘‘This term includes such as a tablet or smart TV). We cloud delivery) and hardware solutions, software or hardware performing the propose a rule to define these and not impede innovation. This will functions traditionally performed in ‘‘Navigable Services’’ as an MVPD’s ensure that consumers will not be hardware navigation devices.’’ Would multichannel video programming forced to use outdated, power-hungry such a modification be consistent with (including both linear and on-demand hardware to receive multichannel video our statutory directive under section programming), every format and programming services. 629 to ‘‘adopt regulations to assure the resolution of that programming that the Sixth, our rules should allow commercial availability . . . of MVPD sends to its own devices and consumers to use the same device with converter boxes, interactive applications, and Emergency Alert different MVPDs throughout the communications equipment, and other System (EAS) messages, because we country. Device portability will equipment’’ used by consumers to tentatively conclude that these elements encourage MVPD competition because access multichannel video programming are what comprise ‘‘multichannel video consumers will be able to change their and other services offered over MVPD programming’’ as that term appears in video service providers without systems? What implications would section 629. We seek comment on this purchasing new equipment. modification of our definition of definition and whether there is Finally, our rules should not prescribe ‘‘navigation devices’’ in this manner information beyond the multichannel a particular solution that may impede have on our current navigation devices video programming and EAS messages the MVPD industry’s technological rules? Would this definitional change that are essential parts of ‘‘multichannel progress. We seek comment on these impact Commission rules in other video programming and other services seven objectives, their appropriateness, contexts? If so, commenters should offered over multichannel video and in particular their relative identify the specific rule, how the programming systems’’ that a navigation importance. definitional change would impact the system needs to access and that we Based on our tentative conclusion that rule, and whether further rule changes should include in the definition. For the market for navigation devices is not would be necessary to reflect the rule example, if an MVPD offers a ‘‘cloud competitive, with the above objectives modification adopted in this recording’’ service that allows in mind, we propose rules that will proceeding. For example, would such a consumers to record programs and store assure a competitive market for devices modification alter the accessibility them remotely, should that cloud that can access multichannel video obligations of device manufacturers and recording service be a ‘‘Navigable programming without jeopardizing software developers and, if so, in what Service’’? We seek comment on how to security of the programming or an manner? define ‘‘MVPD service.’’ MVPD’s ability to prevent theft of Proposals. As discussed above, we do Second, we recognize that the few service, as section 629 requires. Like the not believe that the current marketplace successful CableCARD devices all have authors of the DSTAC Report, we split provides the ‘‘commercial availability’’ something in common: They provide our discussion of these proposals into of competitive navigation devices by user interfaces that compete with the sections regarding the non-security and manufacturers, retailers, and other user interfaces MVPD-provided set-top security elements of multichannel video vendors not affiliated with any MVPD boxes render. Therefore, MVPDs and programming services. that can access multichannel video unaffiliated vendors must be able to The rules we propose are intended to programming within the meaning of differentiate themselves in order to address a fundamental feature of the section 629. Given our experience to effectively compete based on the user current market for multichannel video date, we believe that Section 629 cannot interface and complementary features programming services, namely the be satisfied—that is, we cannot assure a they offer users (e.g., integrated search ‘‘wide diversity in delivery networks, commercial market for devices that can across MVPD content and over-the-top conditional access systems, bi- access multichannel video content, suggested content, integration directional communication paths, and programming—unless companies with home entertainment systems, caller other technology choices across MVPDs unaffiliated with an MVPD are able to ID, and future innovations). (and even within MVPDs of a similar offer innovative user interfaces and Third, unaffiliated vendors must be type).’’ In 1998, the Commission functionality to consumers wishing to able to build competitive navigation concluded that it could address this access that multichannel video devices, including applications, without technological diversity in one of two

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ways, either via complex devices, or via the Commission to prescribe or even Data must include, at a minimum, translation of those diverse network approve the standards so long as the channel information (if any), program technologies into a standardized format. Information Flows are available. A title, rating/parental control This analysis stands seventeen years benefit of this approach is that affected information, program start and stop after it was adopted. We do not wish to industries will be able to evolve as times (or program length, for on-demand impose a single, rigid, government- technology improves. programming), and an ‘‘Entertainment imposed technical standard on the Under our proposed rule, we would Identifier Register ID’’ so that parties, but we understand that it would require each MVPD to provide Service competitive navigation devices can be impossible to build widely used Discovery Data, Entitlement Data, and accurately convey to consumers the equipment without some Content Delivery Data for its ‘‘Navigable programming that is available. We seek standardization. Therefore, as explained Services’’ in published, transparent comment on whether this is the further below, we propose to allow formats that conform to specifications minimum amount of information that MVPDs to choose the specific standards set by open standards bodies. Under this would allow a competitive navigation they wish to use to make their services proposal, we would require MVPDs to device developer to build a competitive available via competitive navigation provide these Information Flows in a system. Should this data also include devices or solutions, so long as those manner that does not restrict information about the resolution of the standards are in a published, competitive user interfaces and features. program, PSIP data, and whether the transparent format that conforms to We seek comment below on this program has accessibility features such specifications set by an open standards proposed rule and on our proposed as closed captions and video body. We also tentatively conclude that definitions of the terms (1) Service description? Should this data include we should require MVPDs to comply Discovery Data, (2) Entitlement Data, (3) the program description information with the rules we propose two years Content Delivery Data, and (4) Open that the MVPD sends to its own after adoption. We seek comment on Standards Body. navigation devices? For example, is it this tentative conclusion. We base these proposed rules on three necessary for the data to include main points from the DSTAC Report Non-Security Elements: Service descriptive information about the related to non-security elements that we advertising embedded within the Discovery, Entitlement, and Content find compelling. First, we agree with the Delivery. We propose an approach to program? Our tentative view is that this Competitive Navigation advocates that level is detail is not necessary. Should non-security elements that balances the developers need the Information Flows interests expressed by the members of it include capabilities of the MVPD’s in a standardized format to encourage Navigable Services? For instance, the the DSTAC and commenters who filed development of competitive, in response to the DSTAC Report. Under DSTAC Report refers to ‘‘stream technology-neutral solutions for management’’ as important information this approach, we will require MVPDs competitive navigation. We also agree that conveys the number of video to provide Service Discovery, with the Proprietary Applications streams that a particular system can Entitlement, and Content Delivery advocates, however, that providing handle based on system bandwidth, information (the ‘‘Information Flows’’) MVPDs with flexibility, where it will tuner resources, or fraud prevention. in standardized formats that the MVPD not impair the competitive market, will One approach is that the MVPD could chooses. Our proposal is based on the encourage and support innovation. provide unaffiliated devices with tentative conclusion that the Significantly, consistent with a major information about the maximum Information Flows are necessary to point of agreement in the DSTAC number of simultaneous video streams ensure that developers that are not Report, these proposed rules do not that can be watched or recorded via the affiliated with an MVPD can develop require MVPDs to ‘‘commonly rely’’ on navigation devices, including software, the Information Flows for their own Service Discovery Data flow. We seek that can access multichannel video navigation devices, so they will not comment on this approach. programming in a way that will assure need to replace the devices that they We propose to define Entitlement a commercial market. We believe that currently provide their subscribers. We Data as information about (1) which this proposed requirement is the least seek comment below on our proposed Navigable Services a subscriber has the burdensome way to assure commercial definitions of these three Information rights to access and (2) the rights the availability of navigation devices (the Flows. In particular, we seek comment subscriber has to use those Navigable specifications necessary to provide on how detailed our definitions should Services. This reflects our assumption these Information Flows appear to exist be; that is, will standards-setting bodies that Entitlement Data will include, at a today) and is consistent with our prior define the details of what information minimum, (1) copy control information rules. Moreover, this approach is should be in the Information Flows, and (2) whether the content may be technology neutral—the Commission sufficient to assure a commercial market passed through outputs, and if so, any would not dictate the MVPD’s decision for navigation systems and meet our information pertaining to passing whether to rely on hardware or software regulatory goals? Should we define this through outputs such as further content to make the Information Flows with the same amount of detail protection and resolution, (3) available. Therefore, the proposed proposed in the DSTAC Report? Are the information about rights to stream the approach would provide each MVPD definitions we propose appropriate for content out-of-home, (4) the resolutions with flexibility to choose the standard all MVPDs, or does the diversity in that are available on various devices, that best aligns with its system network architectures justify different and (5) recording expiration date architecture. It would also give definitions for traditional cable, information, if any. What additional unaffiliated entities access to the satellite, and IP-based services? rights information should be included Information Flows in a published, We propose to define Service in Entitlement Data? We also propose to transparent, and standardized format so Discovery Data as information about require that this data reflect identical that those entities would understand available Navigable Services and any rights that a consumer has on what information is available to them. instructions necessary to request a Navigation Devices that the MVPD sells We believe that this is the best approach Navigable Service. We tentatively or leases to its subscribers. Consumers because the proposal does not require conclude that the Service Discovery must be able to receive and use all of

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content that they pay for no matter the specifications set by ‘‘Open Standards how can we achieve that Congressional device or application they choose, so Bodies.’’ We seek comment on our directive? long as that device or application proposed definition of Open Standards NCTA claims that the Competitive protects content sufficiently. We seek Body: A standards body (1) whose Navigation approach would take years comment on whether our proposed membership is open to consumer of lengthy standards development to definition is flexible enough to electronics, multichannel video implement. Competitive Navigation adequately address future business programming distributors, content advocates, however, filed a set of models. Will consumers’ rights to companies, application developers, and specifications for Service Discovery ‘‘access’’ content vary from their rights consumer interest organizations, (2) that Data, Entitlement Data, and Content to ‘‘use’’ the content? For example, what has a fair balance of interested members, Delivery Data, largely based on DLNA if a consumer subscribes to a 4K feed of (3) that has a published set of VidiPath, that they claim could achieve a particular channel, but the device only procedures to assure due process, (4) the Competitive Navigation proposal has content protection that is approved that has a published appeals process, today. They also claim that ‘‘any necessary standardization, if pursued in by the content owner to protect the and (5) that strives to set consensus good faith, should take no more than a high-definition feed? Will our proposed standards. We seek comment on single year.’’ We seek comment on these definition address that situation? How whether these are the appropriate should we treat Navigable Services that views. The Competitive Navigation characteristics. Are there others we can be recorded and stored remotely advocates submitted evidence that should consider? We believe that there (i.e., ‘‘cloud recording’’ services)? DLNA has a toolkit of specifications is at least one body that meets this Would our requirement that Entitlement available. Given this evidence, we Data be identical for competitive definition but invite commenters to propose to require MVPDs to comply navigation devices and MVPD-provided provide examples of such bodies. We with the rules two years after adoption. navigation devices ensure that a also believe that the characteristics We seek comment on whether the subscriber could record content on a listed in the definition would arm the standards-setting process, if pursued in competitive navigation device if the Commission with an established test to good faith, could allow MVPDs to meet MVPD allows subscribers to record and judge whether an MVPD’s method of that proposed implementation deadline. store that content remotely? delivering the three Information Flows We seek specificity on what more work We propose to define Content is sufficient (in combination with the needs to be done for an Open Standards Delivery Data as data that contains the other elements of the proposal Body to develop standards for Service Navigable Service and any information discussed in this item) to assure a retail Discovery Data, Entitlement Data, and necessary to make the Navigable Service market. The five characteristics that Content Delivery Data. Given the accessible to persons with disabilities define an Open Standards Body would current toolkits of specifications for under our rules. We seek comment on ensure that navigation system Service Discovery Data, Entitlement this definition. Does content delivery developers have input into the Data, and Content Delivery Data, is it include services other than standards-setting process, give them possible for us to adopt a ‘‘fallback’’ or multichannel video programming and confidence that their devices will be ‘‘safe harbor’’ set of specifications? If so, accessibility information? For example, able to access multichannel video should they be those proposed by the the DSTAC Report stated that some programming, and prevent them from Competitive Navigation advocates, or MVPDs provide applications that needing to build a glut of ‘‘capacities to others? We also seek comment on any include news headlines, weather function with a variety of types of other mechanisms we can adopt to information, sports scores, and social different systems with disparate ensure that MVPDs and other interested networking. We tentatively conclude characteristics.’’ We seek comment on parties cooperate in prompt that such information is unnecessary to this proposed approach. development of standards. The DSTAC Report includes an include in the definition of Content We seek comment on whether our Delivery Data because that information ‘‘Implementation Analysis’’ prepared by proposal addresses the critiques of the is freely available from other sources on opponents of the Competitive Competitive Navigation approach that a variety of devices, whereas Navigation approach, arguing that it are set forth in the DSTAC Report, multichannel video programming is not. does not fully establish a method for comments filed in response to that The provision of such applications may replicating, in a competitive navigation allow MVPDs and unaffiliated report, and recent ex partes. A device, all of the services that an MVPD companies to distinguish themselves in consistent argument against the might offer. Our proposal’s grant of a competitive market. In addition to the Competitive Navigation approach has flexibility to MVPDs gives them the applications listed in the DSTAC been its emphasis on a required set of opportunity to seek and adopt standards Report, NCTA states that MVPDs offer standards. The Commission has also in Open Standards Bodies that will services that allow subscribers ‘‘to been wary of stifling ‘‘growth, allow such replication. We seek switch between multiple sports games innovation, and technical comment on this issue. or events or camera angles, view[] developments’’ through regulations to Some commenters argue that the video-on-demand with full interactive implement section 629. We therefore proposal constitutes compelled speech, ‘extras,’ shopping by remote, or see[] the seek comment on whether our proposed or interference with the manner of last channels they tuned.’’ Is there approach, which does not mandate speech of MVPDs, and thus imperils the anything in our proposed definition that specific standards, balances these First Amendment rights of these would foreclose the possibility that a critiques against the need for some speakers. The Commission does not competitive navigation device could standardization. Would this believe that the proposed rules infringe offer these services? We seek comment appropriately implement Congress’s MVPDs’ First Amendment rights. The on this tentative conclusion. clear direction in section 629 to ‘‘adopt proposal to require MVPDs to provide As discussed above, we propose to regulations to assure the commercial Content Delivery Data would simply require MVPDs to provide the availability’’ of navigation devices ‘‘in require MVPDs to provide content of Information Flows in published, consultation with appropriate industry their own choosing to subscribers to transparent formats that conform to standard-setting organizations’’? If not, whom they have voluntarily agreed to

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provide such content. The rules would fostering competition in the market for Services available through competitive not interfere in any way with the devices used by consumers to access navigation devices, by allowing them to MVPD’s choice of content or require video programming. We have tentatively choose from any standard to offer the MVPDs to provide such content to concluded that disclosure of this Information Flows, so long as the anyone to whom they have not information is necessary to ensure that Information Flows are provided in a voluntarily entered into a subscription developers who are not affiliated with published, transparent format agreement. Rather, the rules would an MVPD can develop navigation developed by Open Standards Bodies. simply allow the subscriber to access devices that can access multichannel Does this provide flexibility to MVPDs, the programming that the MVPD has video programming services, so as to while still sufficiently limiting the agreed to provide to it on any compliant foster the commercial market in such universe of standards such that a device Navigation Device. Thus, it does not devices envisioned by Congress. This is could be built for a nationwide market? seem that this aspect of the proposed a policy that Congress directed the We seek comment on how much it rules infringes MVPDs’ First Commission to advance through the would cost to build a single device that Amendment rights. The proposal to adoption of rules, and we propose to is compatible with all of the approaches require MVPDs to provide Service fulfill that statutory obligation in a listed by the Proprietary Applications Discovery Data and Entitlement Data manner that does not impermissibly advocates in the DSTAC Report. If a would require MVPDs to disclose infringe on MVPDs’ First Amendment device were compatible with all of these accurate factual information concerning rights. We seek comment on this Proprietary Applications approaches, the Navigable Service and subscribers’ analysis. would it be compatible with and able to Finally, some commenters argue that rights to access it. Service Discovery receive all multichannel video the Competitive Navigation approach Data is simply information about the programming services? How would this would require MVPDs to deploy ‘‘a New Navigable Service, while Entitlement square with our statutory mandates Operator-Supplied Box’’ to their Data is information about the under Sections 624A (with respect to subscribers. Other commenters disagree subscriber’s rights to use the Navigable cable operators) and 629 of the Act? with this assertion, and state that the Service, designed to protect the service Section 629 directs us to adopt solution could be implemented in the from unauthorized access. We believe regulations to assure a market for cloud at the MVPD’s discretion, thereby that these proposed disclosure devices ‘‘from manufacturers, retailers, avoiding the need for new or additional and other vendors not affiliated with requirements would withstand scrutiny equipment. We believe that our under the First Amendment. In general, proposal does not require most MVPDs any multichannel video programming government regulation of commercial to develop or deploy new equipment, distributor.’’ If device compatibility speech will be found compatible with nor would it require subscribers to relies on MVPDs developing ‘‘device the First Amendment if it meets the obtain additional or new equipment. In specific apps,’’ how could we assure criteria laid out in Central Hudson Gas fact, our proposal may make it easier for entities that are not affiliated with the & Electric Corp. v. Public Service MVPDs to offer cloud-based services MVPD that their devices will be able to Commission, 447 U.S. 557, 566 (1980): because it gives each MVPD the access multichannel video programming (1) There is a substantial government flexibility to choose the standards that services? How would device interest; (2) the regulation directly best achieve its goals. We seek comment manufacturers and consumers ensure advances the substantial government on this belief. Would our proposal that support for the application is not interest; and (3) the proposed regulation necessitate any changes to the MVPD’s withdrawn by the MVPD without is not more extensive than necessary to network, or would it give the MVPD the consultation with the device serve that interest. In Zauderer v. Office discretion to decide whether to modify manufacturer and consumers? Do of Disciplinary Counsel, 471 U.S. 626, its system architecture, as we intend? proprietary applications impose costs or 651 (1985), the Supreme Court adopted Proprietary Applications. The certification processes that could, if left a more relaxed standard to evaluate DSTAC’s Proprietary Applications unchecked, thwart the mandates of compelled disclosure of ‘‘purely factual approach proposed six different Section 629? As an alternative to our and uncontroversial’’ information. methods to deliver MVPD services that proposal, could and should we require Under the standard set forth in would require consumers to use the MVPDs to develop applications within Zauderer, compelled disclosure of MVPD’s proprietary user interface. As a specific timeframe for each device ‘‘purely factual and uncontroversial’’ discussed above, we have significant manufacturer that requests such an information is permissible if doubt that such an approach could application, and to support that ‘‘reasonably related to the State’s assure a commercial market for application indefinitely? Section 629 interest in preventing deception of navigation devices as Section 629 also directs the Commission to adopt consumers.’’ The District of Columbia requires. However, we seek comment on regulations ‘‘in consultation with Circuit recently held in American Meat the DSTAC’s Proprietary Applications appropriate industry standard-setting Institute v. U.S. Department of approach and whether the Proprietary organizations.’’ Does this suggest that Agriculture, 760 F.3d 18 (D.C. Cir. 2014) Applications approach could satisfy the Proprietary Applications approach (en banc), that government interests section 629. proposed in the DSTAC Report, which other than correcting deception can be We also seek comment on whether is not entirely standards-based, is not invoked to sustain a disclosure our proposed rules could achieve the what Congress had in mind? Are requirement under Zauderer. Here, the benefits that the DSTAC Report’s applications, as they have been proposed rules would require the Proprietary Applications approach deployed, ancillary to leased devices, disclosure of purely factual and endeavors to achieve. One of the and therefore unlikely lead to retail uncontroversial information concerning purported benefits of the Proprietary competition with leased devices? Are the MVPD’s service, which we believe Applications approach is that it would the DLNA VidiPath, RVU, DISH Virtual would be sustained under the Zauderer provide MVPDs ‘‘diversity and Joey, and Sling Media Technology and Circuit Court precedents because flexibility.’’ Our proposal attempts to Client applications ‘‘two-device’’ the disclosures are reasonably related to give MVPDs a diversity of choices and solutions that would require consumers advancing the government interest in flexibility in making their Navigable to attach MVPD-provided equipment to

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a separate piece of consumer-owned ‘‘[n]etwork security and conditional embedded in data that is transmitted hardware? What standards, protocols, or access are performed in the cloud, and with content. Like DRM, link protection specifications exist that would allow the security between the cloud and prevents subscribers from using the MVPDs to offer those services without retail navigation devices is a well- programming to which they subscribe in any MVPD-specific equipment inside a defined, widely used link protection unauthorized ways. This technology is consumer’s home, or from the cloud? mechanism such as DTCP.’’ The how a Blu-ray player sends video to a Could MVPDs use those standards, strongest advocates of the Media Server television set when physically protocols, or specifications if we adopt approach are consumer electronics connected—there is no additional our proposal? We also seek comment on manufacturers and consumer-facing verification step necessary, because the any other element of the Proprietary online service providers, as well as television has a certificate that the Blu- Applications approach. consumer advocates. Content protection ray player trusts, and the television has Proposal Regarding Security approaches similar to both proposals are that certificate because it was tested by Elements. We propose that MVPDs be in widespread use today, in other the organization that controls the required to support a content protection content delivery contexts. Although bestowal of certificates at manufacture system that is licensable on reasonable there are differences in how they to make sure that it is a secure device. and nondiscriminatory terms, and has a currently manifest, the key distinction is The Digital Transmission Licensing ‘‘Trust Authority’’ that is not the way in which they allow MVPDs to Administrator (DTLA), which was substantially controlled by an MVPD or control access to content—their founded by Intel Corporation, Hitachi, by the MVPD industry. We believe this ‘‘conditional access’’ systems. Ltd., Panasonic Corporation, Sony approach best balances the benefits of The HTML5 approach allows an Corporation, and Toshiba Corporation, flexibility in content protection choices MVPD to rely on any digital rights is an example of an organization that by MVPDs with the need of management (DRM) system that it hands out those certificates. All of the manufacturers to choose from a limited chooses to manage its content. DRM, in five major Hollywood studios have universe of independently controlled this context, refers to a system of approved DTLA’s link-protection content protection systems. Below we content protection that is based on technology (DTCP) for protecting describe the two alternative proposals permissions granted from a centralized content as it travels from source to set forth by DSTAC Working Group 3, server that the content provider (in this receiver. Traditionally, link protection and detail the concerns raised about case, the MVPD) controls. DRM prevents has been designed to protect content each by commenters. We then discuss subscribers from using the programming within the home as it travels from one why we believe neither approach on its they are entitled to access in device (for example, a Blu-ray player) to own would be sufficient to meet the unauthorized ways. If a subscriber another (for example, a TV set). Commission’s goals in this proceeding, wishes to watch a particular program, Criticism of the DSTAC Proposals. and propose a ‘‘via media’’ that could the consumer’s device contacts the Since publication of the DSTAC Report, allow for a competitive market for rights server. If the subscriber is entitled commenters have raised significant and innovative retail navigation devices to view, record, or otherwise utilize the compelling concerns about universally while also affording MVPDs significant content, then the rights server sends a imposing either approach in the way flexibility. message of approval, and the device described by its advocates. Criticism of DSTAC Proposals. The DSTAC’s displays the content. If the subscriber is the HTML5 approach has come from a Working Group 3, which focused on not entitled to perform that task with spectrum of commenters outside the security, had significant points of the content, then the rights server sends MVPD community, but has centered on agreement. Most fundamentally, the a message of disapproval, and the concern that MVPDs could abuse their group agreed that downloaded security device does not perform the task. ability to fully control the conditional components need to remain in the Traditionally, rights servers for video access system necessary to access their control of the MVPD, but that consumer are not located in consumers’ homes, so content. For example, the Consumer devices could not be built to they do not require additional Video Choice Coalition argues that this simultaneously support every equipment in the home. Devices like approach would keep control in the proprietary content protection system. smart TVs and streaming devices that hands of MVPDs that ‘‘have a history’’ Just as in the non-security context, are able to play programming protected of using their leverage over existing however, DSTAC Working Group 3 had by DRM must be built to conform to application deployment to prevent fundamental disagreements. As each DRM, however, so not every device ‘‘consumers from viewing content they summarized in the DSTAC Report, is equipped to handle each type of DRM have paid for on the device of their Working Group 3 proposed two employed by MVPDs and other video choice.’’ The DRM licensor could be the alternative approaches. The first is the distributors today. MVPD itself, if it chose to offer only a ‘‘HTML5’’ approach, sometimes Under the Media Server approach, proprietary DRM solution, obviously described as the ‘‘DRM’’ approach, conditional access is managed before posing a challenge to any device which ‘‘consists of MVPD/OVDs programming enters consumer devices, manufacturer attempting to compete. supplying media streams over HTTPS and the programming is protected when Critics of the Media Server approach [the secure version of the protocol used moving to consumer devices by a have emphasized the security to transfer data between a browser and standardized link protection system. difficulties potentially posed by a Web site] and CE/CPE devices accessing Link protection, in this context, is an standardized link protection system. For and decrypting those media streams by encrypted connection between a source example, some commenters have stated supplying devices that implement the and a receiver. The system is built on that the current version of DTCP, the HTML5, EME, MSE and Web Crypto the assumption that any device that has industry standard, is inadequate to APIs [software permitting secure a certificate that deems it trustworthy, protect 4K and ultra-high definition handling of the media streams by the granted by a trusted authority at the content. Commenters have also argued devices].’’ The most vocal advocates of time of manufacture and not that the technical limitations on the the HTML5 approach are MVPDs and subsequently revoked by the Trust current version of DTCP would require content providers. The second approach Authority, will treat content as MVPD-provided equipment be in the is the ‘‘Media Server,’’ in which instructed by copy control information home. DTLA has filed comments

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responding to both of these criticisms, themselves providing and profiting from MVPDs. They will not need to seek stating that the soon-to-be-finalized navigation equipment and services, approval, review, or testing from the version of DTCP will be secure enough retail devices will be available only MVPDs themselves, who may have an to protect the highest value content, and when they benefit an MVPD, not when incentive to delay or impede retail flexible enough to protect content they benefit consumers, and a truly navigation devices’ market entry delivered from the cloud. NCTA, Adobe, competitive market will remain out of because their leased navigation devices and ARRIS argue that, however good the reach. Section 629, however, requires us will remain in direct competition with link protection system, if it were to ensure that our rules do not imperil the retail market for the foreseeable industry-wide it would be a single, the security of the content MVPDs are future. We seek comment on these static point of attack that hackers could carrying. At the same time, we also are assumptions. exploit, and it would be insufficiently not persuaded that we should require Accordingly, we propose that MVPDs flexible to respond to threats as they the Media Server proposal. Mandating a must support at least one ‘‘compliant’’ develop. NCTA argues that ‘‘[t]oday, single shared content protection conditional access system or link device manufacturers and video services standard for every piece of MVPD protection technology, although they can choose from a competitive content, as the Media Server proponents may use others at the same time. A marketplace of content protection suggest, would create too much Compliant Security System must be technologies to stay ahead of security potential for vulnerability. It would licensable on reasonable, threats.’’ In contrast, they claim, the impose no requirement (and thus, nondiscriminatory terms, and have a Media Server proposal (specifically, as provide no guarantee) that the developer Trust Authority that is not substantially described in filings after the issuance of of that single shared standard develop a controlled by any MVPD or group of the DSTAC Report) would ‘‘lock[] out new, more robust version in the event MVPDs. An MVPD must make available the whole competitive market for DRM of a hack. the three Information Flows in their and content protection.’’ Security Proposal. Based on the entirety to devices using one of the The record reflects significant record, we believe there is a middle Compliant Security Systems chosen by consensus about the importance of path on the issue of content protection the MVPD. Such a system might flexibility, though clear disagreements that can allow for a competitive market include, for example, future iterations of exist about what that should look like. for innovative retail navigation devices, DTCP or certain DRM systems. Some of the strongest critiques are those including software, that also affords Commenters state that these conditional that could apply equally to any MVPDs significant flexibility to protect access systems could be refined to approach imposed on all MVPDs and their content, evolve their content permit the full range of activity competitive navigation device protection, and respond to security contemplated by the DSTAC, and cloud- manufacturers. The Commission has concerns. Verimatrix asked the based link protection that would often been wary of mandating the Commission not to ‘‘mandate either or minimize or eliminate the need for adoption of specific technologies, rather even both [DSTAC proposals] as ‘the’ MVPD-provided equipment on the than functional goals. Indeed, a number standard solution.’’ They argued that customer’s premises. We seek comment of commenters specifically warn against both should be available as part of a on this proposal, including whether we ‘‘tech mandates’’ in this space. Although ‘‘toolkit’’ of approaches available to need to modify our existing definition of that particular phrasing is more often MVPDs, a toolkit that could in fact ‘‘conditional access’’ in any way. heard from supporters of the HTML5 include other approaches with the We invite comment on some specific proposal, the warnings reflect a broader passage of time. We agree. We therefore questions surrounding our proposal. As concern about the importance of propose that MVPDs retain the freedom noted above, DTLA has stated that a flexibility. Public Knowledge argues to choose the content protection systems pending DTCP update could fully that the Media Server proposal is they support to secure their satisfy the requirements of this proposal superior because it is ‘‘versatile and programming, so long as they enable and the needs of MVPDs. Are there flexible,’’ compared to the HTML5 competitive Navigation Devices. In other content protection systems, proposal, which is ‘‘too rigid order to do so, at least one content particularly specific DRMs currently on technologically.’’ Amazon asks us to protection system they deploy, and to the market, that are likely to be able to ‘‘approach this issue from the which they make available the three comply with the requirements of this standpoint of giving service providers Information Flows in their entirety, approach? We recognize that this technological flexibility.’’ Some must be ‘‘Compliant’’—licensable on approach is likely to result in the need commenters argue that the Commission reasonable and non-discriminatory for competitors to support more than should take no action given the lack of terms, and must not be controlled by one Compliant Security System in their consensus on this issue. A stance of MVPDs. navigation devices. We believe the total inaction, however, would be an We believe this approach will give resulting number of Compliant Security abdication of our responsibility under MVPDs the flexibility they need to Systems would still allow Navigation section 629. Without clear guidance avoid creating a ‘‘single point of attack’’ Device developers to offer competitive from the Commission on the question of for hackers, and the freedom to set their options, but we seek comment on this content protection, a truly competitive own pace on eliminating system- understanding. Is the term ‘‘Trust retail market for alternatives to MVPD specific content security equipment in Authority’’ and our definition—‘‘[an] set-top boxes is unlikely to develop. subscribers’ homes, in response to the entity that issues certificates and keys We are persuaded that the HTML5 demands of the market. At the same used by a Navigation Device to access proposal is not consistent with our goals time, we believe it will assure Navigable Services that are secured by in this proceeding. By leaving total competitors and those considering a given Compliant Security System’’— control of security decisions to MVPDs, entering the market that they can build sufficiently clear? Are there more we would perpetuate a market in which to what is likely to be a limited number accurate or descriptive terms? Should competitors are compelled to seek of content protection standards the entity that issues certificates be the permission from an MVPD in order to licensable on reasonable, non- same as the one that issues keys? build devices that will work on its discriminatory terms, and expect their Should the entity that licenses the system. So long as MVPDs are navigation devices to work across Compliant Security System also be the

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Trust Authority for that system? Are the Compliant Security System chosen by provide programming to devices proposed restrictions on the Trust the MVPD must enable access to all the connected to the Internet via other Authority of a conditional access system programming, with all the same networks. How should this fact be enough to ensure its independence from Entitlement Data that it carries on its addressed by any rule that we adopt? MVPDs? What criteria shall we use to equipment, and the Entitlement Data Are there content protection issues that determine whether a Trust Authority is must not discriminate on the basis of are unique to DBS providers? Are there not ‘‘substantially controlled’’ by an the affiliation of the Navigation Device. technical issues that a Navigation MVPD or by the MVPD industry? Third, on any device on which an Device developer would need to address Are there any other critical elements MVPD makes available an application to when developing a solution for a DBS necessary for this proposal to both access its programming, it must support system? We seek comment on whether protect MVPD content and ensure a at least one Compliant Security System we need to create a DBS exception to market for competitors? Will the lack of that offers access to the same Navigable our proposed rule regarding proprietary uniformity that may result from this Services with the same rights to use applications that deliver MVPD content proposal create an undue burden on those Navigable Services as the MVPD without the use of additional MVPD- competitive entities? Could an MVPD affords to its own application. We specific equipment. We intend for this support at least one Compliant Security discuss these proposals below. proposal to result in MVPDs serving the System but use a non-compliant content The first proposed requirement is vast majority of non-DBS subscribers protection system on their own that, if an MVPD makes available an providing the Information Flows Navigation Devices in a manner that application that allows access to its without the presence of additional favors their own Navigation Devices programming without the technological MVPD-specific equipment. What (e.g., by selecting a Compliant Security need for additional MVPD-specific technology or standards available now System that is computationally equipment, then it shall make Service or in the near future will allow this burdensome for competitive devices)? Discovery Data, Entitlement Data, and ‘‘boxless’’ provision? What impact will Should our rules take into account Content Delivery Data available to this have on MVPD systems? Will this differences in device, viewing location competitive Navigation Devices without approach require any changes for (in-home and out-of-home), and picture the need for MVPD-specific equipment. current subscribers who do not choose quality, or will our proposed ‘‘parity’’ For example, if an MVPD makes to seek out a competitive Navigation requirement, discussed below, resolve available an iOS or Android application Device? Given the importance of any issues in these areas? We also seek that allows access to its programming, it flexibility to the creation of a retail comment on whether we should instead must provide the three Information market, is this proposal correctly adopt one of the DSTAC proposals, or Flows to all competitive Navigation tailored? Would it be possible to ensure another alternative, as the universal Devices without requiring the use of nondiscriminatory provision of the standard, and how such a standard additional MVPD-specific equipment. Information Flows, without requiring could achieve our goals of secure The ability of competitive Navigation additional MVPD-specific equipment in openness in this proceeding. If another Devices to access content without the home, in another way? We seek alternative is proposed, the proponent additional equipment is a concern that comment on this proposal. should provide sufficient detail to has been raised repeatedly in the compare it to the proposals set out here. DSTAC proceeding. We believe that our The second proposed requirement We also seek comment on any other regulations would not assure a limits an MVPD’s ability to discriminate aspect of security relevant to our goals commercial market for Navigation in providing the Navigable Services to in this proceeding that we should take Devices if unaffiliated manufacturers, competitive Navigation Devices. We under consideration. retailers, and other vendors need to rely propose that at least one Compliant Parity. We propose to require that, in on MVPD-provided equipment to Security System chosen by the MVPD implementing the security and non- receive multichannel video enables access to all resolutions and security elements discussed above, programming and affiliated entities do formats of its Navigable Services with MVPDs provide parity of access to not. We seek comment on that the same Entitlement Data to use those content to all Navigation Devices. This assumption. We base this proposal on Navigable Services as the MVPD affords will ensure that competitors have the the presumption that if an MVPD can Navigation Devices that it leases, sells, same flexibility as MVPDs when securely provide the information or otherwise provides to its subscribers. developing and deploying devices, necessary for its proprietary application In addition, we propose that Entitlement including applications, without to access its programming without any Data does not discriminate on the basis restricting the ability of MVPDs to additional equipment, then the MVPD of the affiliation of the Navigation provide different subsets of content in should be able to provide that Device. Our proposed rule requires different ways to devices in different information to non-affiliated Navigation MVPDs to make the Information Flows situations. Parity will also ensure that Devices similarly without additional fully available to any Navigation Device consumers maintain full access to equipment. We seek comment on this using the Compliant Security System content they subscribe to consistent presumption. This proposal they have chosen to support. Even with the access prescribed in the complements the next, in that while the today, however, MVPDs that provide licensing agreements between MVPDs entirety of the Information Flows must their service to subscribers via and programmers. In order to achieve be available to all competitive proprietary applications on certain parity, we propose three requirements. Navigation Devices in this scenario, the equipment such as mobile devices often First, if an MVPD makes its specifics of how each device may use provide only a subset of their programming available without the Navigable Services depend on the multichannel video programming, requiring its own equipment, such as to relevant Entitlement Data. reserving the full service for set-top a tablet or smart TV application, it must We recognize that DBS providers boxes or other in-home viewing options. make the three Information Flows specifically will be required to have We understand that these business available to competitive Navigation equipment of some kind in the home to decisions are made for a variety of Devices without the need for MVPD- deliver the three Information Flows over reasons, including security and specific equipment. Second, at least one their one-way network, even if they also contracts with content providers. We do

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not believe that this practice poses a choose only Compliant Security that ‘‘[t]he Commission shall not threat to the competitive market for Systems that are not available on a prescribe regulations under subsection Navigation Devices so long as it is device on which the MVPD makes (a) of this section which would applied in a nondiscriminatory fashion available its own application to access jeopardize security of multichannel and does not interfere with the ability its programming, thereby eliminating video programming and other services of competitive Navigation Device competition for access to MVPD offered over multichannel video makers to develop competitive user programming via that device. The programming systems, or impede the interfaces and features. We seek proposed rule will ensure that a legal rights of a provider of such comment on this view. competitive application can access services to prevent theft of service.’’ We Our intent is that each MVPD make MVPD programming on devices on interpret this section of the Act to available complete access to all which an MVPD makes available its require that we ensure that our purchased programming, on all own application, thus further ensuring a regulations do not impede robustness channels, at all resolutions, on at least competitive market for devices and compliance. To achieve this one Compliant Security System that it including applications. We seek statutory mandate, our regulations must chooses to support. Thus, Navigation comment on this proposal. ensure that Navigation Devices (1) have Devices accessing the three Information We seek comment on whether the content protection that protects content Flows via that Compliant Security three parity requirements described from theft, piracy, and hacking, (2) System would have the same complete above, in conjunction with the other cannot technically disrupt, impede or access as an MVPD’s leased or provided features of our proposal, will achieve impair the delivery of services to an set-top box in the home. As noted the goal of ensuring a competitive retail MVPD subscriber, both of which we above, though, we recognize that market for Navigation Devices as consider to be under the umbrella of MVPDs may make distinctions contemplated by section 629. We robustness (i.e., that they will adhere to regarding the content delivered based particularly invite commenters to weigh robustness rules), and (3) honors the on the use case of a device. We in on the expected efficacy of these limits on the rights (including copy understand that use cases are generally proposals, and their necessity in control limits) the subscriber has to use differentiated based on screen size and meeting the mandate of section 629. We Navigable Services communicated in in- or out-of-home viewing, and strength are not proposing to impose a common the Entitlement Information Flow (i.e., of content protection used. We seek reliance requirement; rather, we are that they adhere to compliance rules). comment on whether there are any other striving to ensure equitable provision of meaningful distinctions among use content to competitive Navigation Through robustness and compliance cases. We further understand that Devices, to the extent necessary to terms, we seek to ensure that negotiated Entitlement Data enforces these achieve a competitive retail market. We licensing terms imposed by content distinctions in programming today, and seek comment on this approach. providers on MVPDs are passed through we propose to permit MVPDs to Licensing and Certification. We to Navigation Devices. Accordingly, our continue to rely on Entitlement Data to believe that licensing and certification proposal requires MVPDs to choose draw those distinctions, so long as will play important roles under our Compliant Security Systems that competitive Navigation Devices are proposed approach. MVPDs, MPAA, validate only Navigation Devices that subject to only the same restrictions as and companies that supply equipment are sufficiently robust to protect content MVPD Navigation Devices. We seek to MVPDs argue that the Competitive and honor the Entitlement Data that the comment on this proposed requirement. Navigation approach could violate MVPD sends to the Navigation Device. Does a prohibition on discrimination licensing agreements between MVPDs, This is consistent with our based on whether the Navigation Device content companies, and channel guide understanding based on the DSTAC developed is affiliated with the MVPD information providers. Based on our Report that, in other contexts, assure equitable treatment for similarly review of the DSTAC Report, the record, downloadable security systems usually situated Navigation Devices? That is, and the contract that CableLabs uses to include robustness and compliance will our proposed rule ensure that a license technology necessary to build a terms as part of design audits, self- competitive Navigation Device is able to CableCARD device (DFAST), we have verification, or legal agreements, and access the same content with the same identified three major subject matters that an untrustworthy actor will not be usage rights as a Navigation Device that that pertain to licensing and able to receive a certificate for its the MVPD provides? certification. As set forth below, we seek Navigation Devices to verify The final proposed parity requirement comment on how licensing and compliance. We seek comment on this is that, on any device on which an certification can address (1) robustness proposed approach to address MVPD makes available an application to and compliance, which ensure that compliance and robustness. We also access its programming, it must support content is protected as intended, (2) seek comment on whether we need to at least one Compliant Security System prevention of theft of service and harm define the term ‘‘robustness and that offers access to the same Navigable to MVPD networks, which ensures that compliance rules’’ in our proposed Services with the same rights to use devices do not allow the theft of MVPD definition of Compliant Security those Navigable Services as the MVPD service or physically or electronically System, or if that term has a common, affords to its own application. Our harm networks, and (3) important understood meaning, as reflected in the intent here is to ensure parity of access consumer protections in the Act and the DSTAC Report. Should these terms for competitive Navigation Device Commission’s rules. We then invite include, at a minimum, what is developers. Our proposed rules do not comment on alternative approaches we described in the DFAST license? Should require MVPDs to choose Compliant could take to address these issues. these terms contemplate protection of Security Systems that would allow Compliance and Robustness. We seek licensing terms between user guide access from any device; they instead comment on whether licensing can information providers and MVPDs, and must choose one or more Compliant ensure adherence to copy control and thus require unaffiliated Navigation Security Systems to which devices can other rights information (‘‘compliance’’) Device developers to purchase their be built. It may be possible for an MVPD and adequate content protection own detailed program guide to abuse this flexibility, however, and (‘‘robustness’’). Section 629(b) states information? Are there alternatives to

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our proposed approach that would highlighted concerns that competitive process, or are there viable alternatives ensure robustness and compliance? Are Navigation Device developers (i) would to self-certification? For example, there other terms from the DFAST not keep subscribers’ viewing habits should there be an independent entity license that we should cover in this private, as MVPDs are required to do, that validates the competitor’s regard? In addition to section 629, are (ii) would violate advertising limits certification? Should we develop a there other sources of statutory during programming for children, and standardized form? Who would be authority for imposing these compliance (iii) would build devices that do not responsible for maintaining a record of and robustness requirements, such as display emergency alerts or closed the certification? Could Open Standards sections 335(a) and 624A of the Act? captioning or enable parental controls as Bodies or some other third-party entity What impact, if any, does the D.C. MVPDs are required to do. We are require certification as part of their Circuit’s decision in EchoStar Satellite encouraged by the fact that retail regimes and maintain those records? L.L.C. v. FCC have on the Commission’s navigation devices, such as TiVos, have Alternatively, should the Commission ability to adopt compliance and been deployed in the market for over a maintain a repository of certifications? robustness requirements? decade without allegations of a loss of In addition, if there are lapses in Protection of MVPD Networks from consumer privacy, violations of compliance with any certification, what Harm and Theft. We also believe that a advertising limits during programming would be the appropriate enforcement device testing and certification process for children, or problems with mechanism? is important to protect MVPDs’ emergency alerts and accessibility. With respect to all MVPDs, we believe networks from physical or electronic Nonetheless, because these consumer that Section 629 of the Act provides harm and the potential for theft of protections are so important, we authority to impose these restrictions, service from devices that attach directly propose to require that MVPDs because consumers may be dissuaded to the networks. We seek comment on authenticate and provide the three from opting for a competitive navigation the extent to which unaffiliated devices Information Flows only to Navigation solution if they are not confident that will attach directly to MVPD networks. Devices that have been certified by the their interests will be protected to the If devices will connect directly to the developer to meet certain public interest same extent as in an MVPD-provided MVPD network, is our existing rule requirements. We tentatively conclude solution. With respect to DBS operators, 76.1203 sufficient to assure that those that this certification must state that the we also believe section 335(a)—which devices do not cause physical or developer will adhere to privacy directs the Commission to ‘‘impose, on electronic harm to the network? We do protections, pass through EAS messages, providers of direct broadcast satellite not believe that each MVPD should have and adhere to children’s programming service, public interest or other its own testing and certification advertising limits. This proposal would requirements for providing video processes. Under the CableCARD mean that MVPDs are not required to programming’’—grants us authority to regime, devices our rules allowed enable the Information Flows unless ensure that these goals are met testing to be performed by a qualified they receive this certification, and also regardless of whether the DBS test facility, which is defined as ‘‘a that they are prohibited from providing multichannel video programming is testing laboratory representing cable the Navigable Services to a Navigation accessed by means of a DBS-provided television system operators serving a Device that does not have such a device. We also seek comment on majority of the cable television certification. MVPDs cannot withhold whether the sources of statutory authority for imposing on MVPDs subscribers in the United States or an the three Information Flows if they have appropriately qualified independent privacy requirements, advertising limits received such certification and do not laboratory with adequate equipment and on children’s programming, emergency have a good faith reason to doubt its competent personnel knowledgeable alerting requirements, closed captioning validity. This will ensure that the public with respect to the’’ CableCARD requirements, video description policy goals underlying these standards. We seek comment on requirements, parental control requirements are met regardless of whether that approach protected cable requirements, or other consumer which device a consumer chooses to networks from physical and electronic protection requirements also authorize access multichannel video harm and from theft of service, and the Commission to require that MVPDs programming. We seek comment on this whether it had any effect on the provide the three Information Flows proposal and invite alternative commercial availability of CableCARD only to Navigation Devices that have devices. We also seek comment on proposals within our jurisdiction that been certified by the developer to meet which entities have or may develop would ensure that these important certain public interest requirements. testing and certification processes. What consumer protections remain in effect This will ensure that the new kind of testing should be required? We while we promote a competitive Navigation Device rules will not note, for example, there is a seven-step navigation market. Should the proposed undercut our rules imposing those certification process to ensure that certification address any other issues, public interest requirements. We seek DLNA-certified devices do not have including compliance with the comment on these views and invite defects that would harm networks. Is Commission’s accessibility rules and commenters to suggest any other this type of testing sufficient? We seek parental controls, or should we leave sources of authority. comment on this proposal and any these matters to the market? We also We seek comment on how MVPDs alternative approaches, such as self- seek comment on whether the retail could ensure that they do not provide certification. market will be competitive enough to the Information Flows to uncertified Consumer Protection. It is essential make any such regulation unnecessary devices. Could the MVPD use device that any rules we adopt to meet the (that is, the competitive market will authentication to ensure that they do goals of section 629 do not undermine assure that the protections that not send the three Information Flows to other important public policy goals consumers desire are adequately uncertified Navigation Devices? Could underlying the Communications Act, protected). the Entitlement Data direct a device not which are achieved by means of We seek comment on the best way to to display the Content Data unless the requirements imposed on MVPDs. implement such a certification process. Navigation Device was built by a Specifically, certain commenters Should this be a self-certification developer who is certified? Are there

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other methods MVPDs could use to action. Do any state laws provide for any such problems in the CableCARD ensure that they send the Information both administrative and private rights of regime, and do not expect that the new Flows only to Navigation Devices that action and/or damages in the event of a approach we propose above will allow will honor these important consumer privacy violation? TiVo asserts that it is such behavior. Accordingly, we believe protection obligations? Similarly, how subject to enforcement by the FTC and these concerns are speculative, and can MVPDs ensure, as both a technical state regulators for any failures to abide while we believe at this time it is and practical matter, that the by its comprehensive privacy policy. unnecessary for us to propose any rules Information Flows are no longer We note that the FTC has taken legal to address these issues, we seek provided if there are any lapses in a action under its broad Section 5 ‘‘unfair comment on this view. We also seek competitor’s compliance with these and deceptive acts’’ authority against comment on the extent to which obligations? companies that violate their posted copyright law may protect against these We seek comment on how this consumer privacy policies. We seek concerns, and note that nothing in our requirement will affect Navigation comment on whether state laws proposal will change or affect content Device developers. We do not expect it governing unfair and deceptive acts creators’ rights or remedies under will be difficult for developers to certify have similarly been used against copyright law. In the event that to these consumer protections. For companies that violate their consumer commenters submit evidence indicating example, such content as EAS alerts privacy policies and whether these laws that regulations are needed, we seek will be included in the Information are applicable to competitive device comment on whether we have the Flows that MVPDs make available, and manufacturers. Furthermore, the Video authority and enforcement mechanisms we do not expect enabling receipt of this Privacy Protection Act, with limited content to be burdensome. Similarly, as exceptions, generally prohibits to address such concerns. to ensuring the privacy of subscriber companies that provide video online Small MVPDs. We seek comment on information, given the national market from disclosing the viewing history and how any rules that we adopt could for consumer technology, they must other personally identifiable affect small MVPDs, and whether we already ensure that their products and information of a consumer without the should impose different rules or services meet the privacy standards of consumer’s prior written consent. Does implementation deadlines for small the strictest state regulatory regime. this statute impose any obligations on MVPDs. We tentatively conclude that all Moreover, the global economy means competitive device manufacturers to analog cable systems should be exempt that many developers must comply with protect personally identifiable from the rules we propose today, just as the European Union privacy regulations, information collected from consumers? they were exempt from the original which are much more stringent that the Are there any other state or federal laws separation of security rules. We also requirements placed on MVPDs under that would help to ensure that seek specific comment on the American sections 631 and 338 of the competitive device manufacturers Cable Association’s proposal to exempt Communications Act. protect consumer privacy? MVPDs serving one million or fewer Although we propose that competitive Licensing Alternatives. As an subscribers from any rules we adopt. Is device manufacturers certify alternative to the licensing and there a size-neutral way that we could compliance with sections 631 and 338, certification approaches we lay out ensure that our rules are not overly we seek comment on the extent to above, should we instead require burdensome to MVPDs? The American which those manufacturers that collect industry parties to develop a Cable Association also asserts that many personally identifiable information from standardized license and certification of its members are not prepared to consumers using their devices are regime, similar to the DFAST license, transition soon to delivery of their currently subject to state privacy laws which has appeared to work at services in Internet Protocol, but we and the scope of any such laws. We balancing consumer protection issues note that our proposed rules do not note, for example, that California’s and allowing retail Navigation Device require MVPDs to use Internet Protocol Online Privacy Protection Act applies to developers to innovate? Who would be to deliver the three Information Flows an entity that owns an online service responsible for managing that licensing or Compliant Security System. For that collects and maintains personally system? Should our Navigation Device example, although we do not advocate identifiable information from consumers rules instead impose these terms by reliance on CableCARD as a long-term residing in California who use the regulation, either initially or if industry online service if the online service is parties cannot reach agreement? Does solution, we note that the CableCARD used for commercial purposes. Would the Commission have authority to standard largely appears to align with this statute apply to competitive device impose such terms via regulation? Has our proposed rules. Could the manufacturers to the extent that they competitive navigation under the CableCARD regime remain a viable use the Internet to provide programming CableCARD regime led to any license option for achieving the goals of Section guide, scheduling, and recording agreement violations, privacy violations, 629 for those systems that continue to information to consumers? Are there or other violations of consumer use QAM technology? Are there any similar state privacy laws covering protection laws? If so, what were the changes to the CableCARD rules that consumers residing in each of the other specifics of those violations, and how should be made in light of more than a states? To what extent do state privacy were they resolved? decade of experience with the regime or laws require that manufacturers have We do not currently have evidence to accommodate changes in the MVPD privacy policies? MVPDs are obligated that regulations are needed to address industry since the rules were adopted? to provide privacy protections under concerns raised by MVPDs and content Do MVPDs who have not transitioned to sections 631 and 338 of the Act. Do state providers that competitive navigation IP delivery of control channel privacy laws require manufacturers to solutions will disrupt elements of information nonetheless provide IP- provide a comparable level of consumer service presentation (such as agreed- based applications to their customers or protection? For example, the privacy upon channel lineups and use IP to send content to devices protections established by sections 631 neighborhoods), replace or alter throughout a home network? If so, and 338 are enforceable by both the advertising, or improperly manipulate should such MVPDs be required to Commission and by private rights of content. We have not seen evidence of comply with the rules requiring parity

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for other Navigation Device developers determined to be subject to ‘‘effective to adopt an expanded rule against cross- via the Information Flows? competition’’ as defined in the rate subsidization? Or would such a rule Billing Transparency. We seek regulation provisions of the Act and provide a useful prophylactic against comment on how best to align our thus exempted from rate regulation. future attempts to cross-subsidize? existing rule on separate billing and Since that time, the Commission has Would it suffice to require that a subsidies for devices with the text of the made many findings that the statutory nonzero price be identified for any Act, the current state of the marketplace, test for effective competition was met leased device? We seek comment on and our goal of facilitating a competitive and updated its effective competition these issues. Commenters supporting marketplace for navigation devices. rules to reflect the current MVPD adoption of an expanded anti-cross- Section 629 states that our regulations marketplace. We are no longer subsidization rule should address the ‘‘shall not prohibit [MVPDs] from also convinced that the statutory test for the Commission’s previous determination offering [navigation devices] to applicability of rate regulation properly that ‘‘[a]pplying the subsidy prohibition consumers, if the system operator’s addresses our objective of promoting a to all MVPDs would lead to distortions charges to consumers for such devices competitive market for navigation in the market, stifling innovation and and equipment are separately stated and devices as directed by Section 629. We undermining consumer choice.’’ not subsidized by charges for any such base this proposed change in policy on If we decide to adopt an updated anti- service.’’ We note that, although Section our belief that customers may likely subsidy rule, how should we determine 629(a) of the Act states that the consider the costs of lease against whether a device fee is cross- Commission ‘‘shall not prohibit’’ any purchase when considering whether to subsidized? For example, would the MVPD from offering navigation devices purchase a competitively provided factors set forth in section 76.1205(b)(5) to consumers if the equipment charges device, and must know what it costs to for determining the price that is are separately stated and not subsidized lease a device in order to make an ‘‘reasonably allocable’’ to a device lease by service charges, it does not appear to informed decision. Accordingly, we fee be applicable for this purpose? How affirmatively require the Commission to seek comment on whether we should should we consider the possibility that require separate statement or to prohibit modify our billing and/or anti-subsidy an MVPD would ascribe a zero or near- cross-subsidies. In the Commission’s requirements set forth in section zero price to a navigation device, and 1998 Report and Order, which 76.1206. what implications might there be for implemented section 629, the In particular, under the circumstances further Commission responsibilities and Commission rejected the argument that that exist today, should we revise our actions? Are there other ways in which section 629’s requirements are rules to require all MVPDs to state we can promote a competitive ‘‘absolute’’ and that the section separately a charge for leased navigation marketplace through requirements ‘‘expressly prevents all MVPDs from devices and to reduce their charges by applicable to equipment that MVPDs subsidizing equipment cost with service that amount to customers who provide lease, sell, or otherwise provide to their charges.’’ The Commission found that in their own devices, regardless of whether subscribers? For example, Anne a competitive market ‘‘there is minimal the statutory test for the applicability of Arundel and Montgomery Counties, concern with below cost pricing because rate regulation is met? Is such a Maryland in their reply comments revenues do not emanate from requirement a necessary or appropriate propose that our rules (1) prohibit monopoly profits. The subsidy provides complement to the rules we propose service charges for viewing on more a means to expand products and today to facilitate the offering of than one device, (2) prohibit service services, and the market provides a self- competitive navigation devices? We charge penalties for consumer-owned correcting resolution of the subsidy.’’ tentatively conclude that we should devices, (3) prohibit multi-year The Commission thus concluded that adopt such a requirement with respect contracts based on the use of a ‘‘[e]xisting equipment rate rules to all navigation devices, including consumer-owned device, (4) ban applicable to cable television systems modems, routers, and set top boxes, and ‘‘additional outlet’’ fees, (5) prohibit not facing effective competition address we invite comment on that tentative requirements that consumers lease Section 629(a)’s requirement that conclusion. equipment, and (6) give consumers the charges to consumers for such devices If we adopt a requirement that all ability to purchase equipment outright. and equipment are separately stated and MVPDs state separately a charge for Commenters should include a not subsidized by charges for any other leased navigation devices, we invite discussion of the Commission’s service.’’ Accordingly, the Commission comment on whether we should also authority to adopt any regulations applied the separate billing and anti- impose a prohibition on cross- proposed. subsidy requirements set forth in subsidization of device charges with CableCARD Support and Reporting. Section 76.1206 of our rules only to service fees. Section 629 discusses In this section, we seek comment on rate-regulated cable operators. In 2010, separate statement and prohibition of whether the CableCARD consumer the Commission adopted ‘‘CableCARD cross-subsidy in the same sentence; but support rules set forth in section support’’ rules, which included pricing we read the statute to permit us to make 76.1205(b) of the Commission’s rules transparency requirements and required an individual determination whether to continue to serve a useful purpose and uniform pricing for CableCARDs impose one requirement or the other, or should be retained following the D.C. ‘‘regardless of whether the CableCARD both (or neither). Do present market Circuit’s 2013 decision in EchoStar is used in a leased set-top box or a circumstances warrant adoption of an Satellite L.L.C. v. FCC, which vacated navigation device purchased at retail.’’ anti-subsidization rule? Observers often two 2003 Commission Orders adopting Developments since the 1998 Report suggest that the charges currently the CableCARD standard as the method and Order raise a question whether the imposed for leased devices are typically that must be used by digital cable applicability of the Act’s rate regulation excessive, rather than cross-subsidized. operators in implementing the provisions should continue to A requirement of separate statement, by separation of security requirement for determine the applicability of our itself, should help to enable competition navigation devices. We tentatively separate billing and anti-subsidy rules. in the marketplace to ameliorate conclude that these rules continue to At the time of that order, only a small excessive pricing of leased devices. Is it serve a useful purpose and propose to minority of cable systems had been therefore unnecessary at this time for us retain them in our rules. We seek

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comment on this tentative conclusion. severable from the rest of the rules the Notice. The Commission will send Alternatively, if commenters contend adopted in the 2003 Orders (including a copy of the Notice, including this that the CableCARD consumer support the rule that imposes the CableCARD IRFA, to the Chief Counsel for Advocacy rules should be eliminated or modified standard), and therefore the D.C. Circuit of the Small Business Administration in light of EchoStar, commenters should vacated both of the orders. (SBA). In addition, the Notice and IRFA explain the basis for their contention. Subsequently, questions have been (or summaries thereof) will be To the extent that we conclude that the raised as to what effect, if any, the published in the Federal Register. CableCARD consumer support rules EchoStar decision has on the continued Need for and Objectives of the continue to serve a useful purpose, we validity of the CableCARD consumer Proposed Rules. In the Notice, the seek comment on whether to eliminate support requirements in Section Commission seeks comment on the requirement that the six largest cable 76.1205(b) of the Commission’s rules. proposed rules relating to the operators submit status reports to the We seek comment on whether the Commission’s obligation under Section Commission every 90 days on CableCARD consumer support rules set 629 of the Communications Act to CableCARD deployment and support. forth in Section 76.1205(b) continue to assure a commercial market for In 2005, the Commission adopted a serve a useful purpose after the D.C. equipment that can access multichannel requirement that the six largest cable Circuit’s 2013 decision in EchoStar. As video programming and other services operators submit status reports to the discussed above, the EchoStar decision offered over multichannel video Commission every 90 days on vacated the two 2003 Orders that programming systems. The NPRM CableCARD deployment and support. adopted rules mandating that MVPDs tentatively concludes that new rules The Commission adopted this reporting use the CableCARD standard to support about multichannel video programming requirement to ensure that cable the separation of security requirement. distributor’s (MVPD’s) provision of operators meet their obligations to The EchoStar decision did not, content are needed to further the goals deploy and support CableCARDs. In an however, vacate or even address the of Section 629. It proposes such new effort to ‘‘improve consumers’ consumer support rules for cable rules, relating to the information that experience with retail navigation operators that choose to continue to rely MVPDs must provide to allow devices,’’ the Commission in 2010 on the CableCARD standard in order to competitive user interfaces, the security imposed specific CableCARD consumer comply with the separated security flexibility necessary to protect content, support requirements on cable requirement, which remains in effect. and the parity requirements necessary to operators. Specifically, these Accordingly, we believe that the ensure a level playing field between CableCARD consumer support rules: (1) consumer support rules set forth in MVPD-leased equipment and Require cable operators to support the section 76.1205(b) continue to serve a competitive methods that consumers reception of switched digital video useful purpose and should be retained. might use to access MVPD service services on retail devices to ensure that We seek comment on this belief. Are the instead of leasing MVPD equipment. subscribers are able to access the consumer support rules still necessary The Notice also asks about MVPD fees services for which they pay regardless of to support a competitive market for for devices and the current status of the whether they lease or purchase their retail navigation devices? Commission’s CableCARD rules, the devices; (2) prohibit price Additionally, we seek comment on existing rules arising from Section 629. discrimination against retail devices to whether to eliminate the CableCARD Legal Basis. The authority for the support a competitive marketplace for reporting requirement applicable to the action proposed in this rulemaking is retail devices; (3) require cable operators six largest cable operators. Specifically, contained in sections 1, 4, 303, 303A, to allow self-installation of CableCARDs we seek comment on whether the 335, 403, 624, 624A, 629, 631, 706, and where device manufacturers offer reporting requirement is still necessary 713 of the Communications Act of 1934, device-specific installation instructions in light of the CableCARD consumer as amended, 47 U.S.C. 151, 154, 303, to make the installation experience for support requirements, as well as the 303a, 335, 403, 544, 544a, 549, 551, 606, retail devices comparable to the recent repeal of the integration ban. As and 613. experience for leased devices; (4) explained above, the reporting Description and Estimate of the require cable operators to provide multi- requirement was intended to ensure that Number of Small Entities to Which the stream CableCARDs by default to ensure cable operators satisfy their obligations Proposed Rules Will Apply. The RFA that cable operators are providing their to deploy and support CableCARDs. Are directs the Commission to provide a subscribers with current CableCARD the consumer support requirements description of and, where feasible, an technology; and (5) clarify that sufficient to ensure that cable operators estimate of the number of small entities CableCARD device certification rules meet these obligations? If so, is there that will be affected by the proposed are limited to certain technical features any reason to retain the reporting rules, if adopted. The RFA generally to make it easier for device requirement or should it be eliminated? defines the term ‘‘small entity’’ as manufacturers to get their products to Initial Regulatory Flexibility Act having the same meaning as the terms market. Analysis. As required by the Regulatory ‘‘small business,’’ small organization,’’ In 2013, the D.C. Circuit in EchoStar Flexibility Act of 1980, as amended and ‘‘small government jurisdiction.’’ In vacated the two 2003 Orders adopting (‘‘RFA’’) the Commission has prepared addition, the term ‘‘small business’’ has the CableCARD standard as the method this present Initial Regulatory the same meaning as the term ‘‘small that must be used by all MVPDs in Flexibility Analysis (‘‘IRFA’’) business concern’’ under the Small implementing the separation of security concerning the possible significant Business Act. A small business concern requirement for navigation devices. The economic impact on small entities by is one which: (1) Is independently D.C. Circuit concluded that the the policies and rules proposed in this owned and operated; (2) is not Commission lacked the authority under Notice of Proposed Rulemaking dominant in its field of operation; and section 629 to impose encoding rules, (Notice). Written public comments are (3) satisfies any additional criteria which put a ceiling on the copy requested on this IRFA. Comments must established by the SBA. protections that MVPDs can impose, on be identified as responses to the IRFA Wired Telecommunications Carriers. satellite carriers. The Commission and must be filed by the deadlines for The North American Industry argued that those rules were not comments indicated on the first page of Classification System (‘‘NAICS’’) defines

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‘‘Wired Telecommunications Carriers’’ rules, a ‘‘small system’’ is a cable system entities. However, the data we have as follows: ‘‘This industry comprises serving 15,000 or fewer subscribers. available as a basis for estimating the establishments primarily engaged in Current Commission records show 4,629 number of such small entities were operating and/or providing access to cable systems nationwide. Of this total, gathered under a superseded SBA small transmission facilities and infrastructure 4,057 cable systems have less than business size standard formerly titled that they own and/or lease for the 20,000 subscribers, and 572 systems ‘‘Cable and Other Program transmission of voice, data, text, sound, have 20,000 or more subscribers, based Distribution.’’ As of 2002, the SBA and video using wired on the same records. Thus, under this defined a small Cable and Other telecommunications networks. standard, we estimate that most cable Program Distribution provider as one Transmission facilities may be based on systems are small entities. with $12.5 million or less in annual a single technology or a combination of Cable System Operators (Telecom Act receipts. Currently, only two entities technologies. Establishments in this Standard). The Communications Act of provide DBS service, which requires a industry use the wired 1934, as amended, also contains a size great investment of capital for operation: telecommunications network facilities standard for small cable system DIRECTV and DISH Network. Each that they operate to provide a variety of operators, which is ‘‘a cable operator currently offers subscription services. services, such as wired telephony that, directly or through an affiliate, DIRECTV and DISH Network each services, including VoIP services; wired serves in the aggregate fewer than 1 report annual revenues that are in (cable) audio and video programming percent of all subscribers in the United excess of the threshold for a small distribution; and wired broadband States and is not affiliated with any business. Because DBS service requires Internet services. By exception, entity or entities whose gross annual significant capital, we believe it is establishments providing satellite revenues in the aggregate exceed unlikely that a small entity as defined television distribution services using $250,000,000.’’ There are approximately under the superseded SBA size standard facilities and infrastructure that they 54 million cable video subscribers in the would have the financial wherewithal to operate are included in this industry.’’ United States today. Accordingly, an become a DBS service provider. The SBA has developed a small operator serving fewer than 540,000 Description of Projected Reporting, business size standard for wireline firms subscribers shall be deemed a small Recordkeeping and Other Compliance for the broad economic census category operator if its annual revenues, when Requirements. The Notice proposes the of ‘‘Wired Telecommunications combined with the total annual following new or revised reporting or Carriers.’’ Under this category, a revenues of all its affiliates, do not recordkeeping requirements. It proposes exceed $250 million in the aggregate. wireline business is small if it has 1,500 that MVPDs offer three flows of Based on available data, we find that all or fewer employees. Census data for information using any published, but ten incumbent cable operators are 2007 shows that there were 3,188 firms transparent format that conforms to small entities under this size standard. that operated for the entire year. Of this specifications set by open standards We note that the Commission neither total, 3,144 firms had fewer than 1,000 bodies, to permit the development of requests nor collects information on employees, and 44 firms had 1,000 or competitive navigation devices with whether cable system operators are more employees. Therefore, under this competitive user interfaces. It proposes size standard, we estimate that the affiliated with entities whose gross that the flows of information not be majority of businesses can be annual revenues exceed $250 million. made available to a device absent considered small entities. Although it seems certain that some of Cable Television Distribution these cable system operators are verification that the device will honor Services. Since 2007, these services affiliated with entities whose gross copying and recording limits, privacy, have been defined within the broad annual revenues exceed $250,000,000, Emergency Alert System messages, the economic census category of Wired we are unable at this time to estimate Accessibility Rules in Part 79 of the Telecommunications Carriers, which with greater precision the number of Commission’s Rules, parental control category is defined above. The SBA has cable system operators that would information, and children’s developed a small business size qualify as small cable operators under programming advertising limits. standard for this category, which is: All the definition in the Communications It further proposes that each MVPD such businesses having 1,500 or fewer Act. use at least one content protection employees. Census data for 2007 shows Direct Broadcast Satellite (DBS) system that is licensed on a reasonable that there were 3,188 firms that operated Service. DBS service is a nationally and non-discriminatory basis by an for the entire year. Of this total, 3,144 distributed subscription service that organization that is not affiliated with firms had fewer than 1,000 employees, delivers video and audio programming MVPDs; that at least one such content and 44 firms had 1,000 or more via satellite to a small parabolic ‘‘dish’’ protection system make available the employees. Therefore, under this size antenna at the subscriber’s location. entirety of the MVPD’s service; and that standard, we estimate that the majority DBS, by exception, is now included in the MVPD ensure that, on any device for of businesses can be considered small the SBA’s broad economic census which it provides an application, such entities. category, Wired Telecommunications a content protection system is available Cable Companies and Systems. The Carriers, which was developed for small to competitors wishing to provide the Commission has developed its own wireline businesses. Under this same level of service. It also proposes a small business size standards for the category, the SBA deems a wireline bar on Entitlement data discrimination purpose of cable rate regulation. Under business to be small if it has 1,500 or because of the affiliation of otherwise the Commission’s rules, a ‘‘small cable fewer employees. Census data for 2007 proper devices. The Notice proposes to company’’ is one serving 400,000 or shows that there were 3,188 firms that require each MVPD that offers its own fewer subscribers nationwide. Industry operated for that entire year. Of this application on unaffiliated devices data shows that there are currently 660 total, 2,940 firms had fewer than 100 without the need for MVPD-specific cable operators. Of this total, all but ten employees, and 248 firms had 100 or equipment to also offer the three cable operators nationwide are small more employees. Therefore, under this information flows to unaffiliated under this size standard. In addition, size standard, the majority of such applications without the need for under the Commission’s rate regulation businesses can be considered small MVPD-specific equipment.

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Finally, the Notice proposes to require ‘‘boxless’’ programming to their own themselves with the Commission’s ex MVPDs to separately state the fees devices. Thus, smaller MVPDs that are parte rules. charged to lease devices on consumers’ not providing this service will not be Filing Requirements. Pursuant to bills, and, in a possible reduction of required to implement ‘‘boxless’’ sections 1.415 and 1.419 of the reporting requirements, seeks comment information flows by operation of the Commission’s rules,1 interested parties on discontinuing a requirement that the proposed rule. may file comments and reply comments six largest cable operators report to the Federal Rules Which Duplicate, on or before the dates indicated on the Commission about their support for Overlap, or Conflict With the first page of this document. Comments CableCARD. Commission’s Proposals. None. may be filed using the Commission’s Steps Taken To Minimize Significant Authority. This Notice of Proposed Electronic Comment Filing System Impact on Small Entities, and Rulemaking is issued pursuant to (‘‘ECFS’’).2 Significant Alternatives Considered. The authority contained in Sections 4(i), 4(j), Electronic Filers: Comments may be RFA requires an agency to describe any 303(r), 325, 403, 616, 628, 629, 634 and filed electronically using the Internet by significant alternatives that it has 713 of the Communications Act of 1934, accessing the ECFS: http://fjallfoss.fcc. considered in reaching its proposed as amended, 47 U.S.C. 154(i), 154(j), gov/ecfs2/. approach, which may include the 303(r), 325, 403, 536, 548, 549, 554, and Paper Filers: Parties who choose to following four alternatives (among 613. file by paper must file an original and others): (1) The establishment of Ex Parte Rules. The proceeding one copy of each filing. If more than one differing compliance or reporting initiated by this Notice of Proposed docket or rulemaking number appears in requirements or timetables that take into Rulemaking shall be treated as ‘‘permit- the caption of this proceeding, filers account the resources available to small but-disclose’’ proceedings in accordance must submit two additional copies for entities; (2) the clarification, with the Commission’s ex parte rules. each additional docket or rulemaking consolidation, or simplification of Persons making ex parte presentations number. compliance or reporting requirements must file a copy of any written Filings can be sent by hand or under the rule for small entities; (3) the presentation or a memorandum messenger delivery, by commercial use of performance, rather than design, summarizing any oral presentation overnight courier, or by first-class or standards; and (4) an exemption from within two business days after the overnight U.S. Postal Service mail. All coverage of the rule, or any part thereof, presentation (unless a different deadline filings must be addressed to the for small entities. Commission’s Secretary, Office of the The Notice proposes rules intended to applicable to the Sunshine period applies). Persons making oral ex parte Secretary, Federal Communications assure a commercial market for Commission. competitive Navigation Devices. The presentations are reminded that memoranda summarizing the All hand-delivered or messenger- Commission’s has a statutory obligation delivered paper filings for the to do so, and has concluded that it presentation must: (1) List all persons attending or otherwise participating in Commission’s Secretary must be cannot do so if competitive Navigation delivered to FCC Headquarters at 445 Devices are tied to specific MVPDs. As the meeting at which the ex parte presentation was made; and (2) 12th St. SW., Room TW–A325, a result, the compliance requirements Washington, DC 20554. The filing hours must be the same for all MVPDs, large summarize all data presented and arguments made during the are 8:00 a.m. to 7:00 p.m. All hand and small. The rules have been deliveries must be held together with proposed in terms to minimize presentation. If the presentation consisted in whole or in part of the rubber bands or fasteners. Any economic impact on small entities. The envelopes and boxes must be disposed proposed rules allow flexibility for presentation of data or arguments already reflected in the presenter’s of before entering the building. MVPDs while still assuring device Commercial overnight mail (other written comments, memoranda, or other manufacturers they can build to a than U.S. Postal Service Express Mail filings in the proceeding, the presenter manageable number of standards, and and Priority Mail) must be sent to 9300 may provide citations to such data or assuring consumers that they only need East Hampton Drive, Capitol Heights, arguments in his or her prior comments, a single device. That flexibility arises MD 20743. memoranda, or other filings (specifying from the fact that the proposed rules U.S. Postal Service first-class, the relevant page and/or paragraph establish performance standards, not Express, and Priority mail must be numbers where such data or arguments design standards. Although the addressed to 445 12th Street SW., can be found) in lieu of summarizing compliance requirements must be the Washington, DC 20554. same in order to comply with our them in the memorandum. Documents Availability of Documents. Comments statutory mandate, the requirements shown or given to Commission staff and reply comments will be available themselves are clear and simple. during ex parte meetings are deemed to for public inspection during regular Because they would be able, under the be written ex parte presentations and business hours in the FCC Reference proposed rules, to rely on open must be filed consistent with rule Center, Federal Communications standards for information flows and 1.1206(b). In proceedings governed by Commission, 445 12th Street SW., CY– RAND licensable security, small MVPDs rule 1.49(f) or for which the A257, Washington, DC 20554. These would not have to engage in complex Commission has made available a documents will also be available via compliance efforts. The only reporting method of electronic filing, written ex ECFS. Documents will be available requirements are related to fees for parte presentations and memoranda electronically in ASCII, Microsoft Word, device leases, which cannot be further summarizing oral ex parte and/or Adobe Acrobat. simplified for small entities. Finally, presentations, and all attachments People with Disabilities. To request although the rules do not contemplate thereto, must be filed through the materials in accessible formats for exemptions for small entities, the electronic comment filing system people with disabilities (braille, large proposed rule requiring ‘‘boxless’ available for that proceeding, and must provision of the three information flows be filed in their native format (e.g., .doc, 1 See id. §§ 1.415, 1.419. applies only to MVPDs with the .xml, .ppt, searchable .pdf). Participants 2 See Electronic Filing of Documents in technological sophistication to offer in this proceeding should familiarize Rulemaking Proceedings, 63 FR 24121 (1998).

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print, electronic files, audio format), including the Regulatory Flexibility prevent a signal from being received send an email to [email protected] or call Analysis, to the Chief Counsel for except by authorized users. the FCC’s Consumer and Governmental Advocacy of the Small Business (e) Content Delivery Data. Data that Affairs Bureau at (202) 418–0530 Administration. contains the Navigable Service and any (voice), (202) 418–0432 (TTY). information necessary to make the Additional Information. For List of Subjects in 47 CFR Part 76 Navigable Service accessible to persons additional information on this Administrative practice and with disabilities under part 79 of this proceeding, contact Brendan Murray of procedure; Cable television; Equal Title. the Media Bureau, Policy Division, (202) employment opportunity; Political (f) Entitlement Data. Information 418–1573 or Lyle Elder of the Media candidates; Reporting and about (1) which Navigable Services a Bureau, Policy Division, (202) 418– recordkeeping requirements. subscriber has the rights to access and (2) the rights the subscriber has to use 2365. Federal Communications Commission. Regulatory Flexibility Analysis. As those Navigable Services. Entitlement required by the Regulatory Flexibility Marlene H. Dortch, data shall reflect identical rights that a Act of 1980, see 5 U.S.C. 604, the Secretary. consumer has on Navigation Devices Commission has prepared an Initial Proposed Rules that the multichannel video Regulatory Flexibility Analysis (IRFA) programming distributor sells or leases of the possible significant economic For the reasons discussed in the to its subscribers. impact on small entities of the policies preamble, the Federal Communications (g) Multichannel video programming and rules addressed in this document. Commission proposes to amend 47 CFR distributor. A person such as, but not The IRFA is set forth in Appendix B. part 76 as follows: limited to, a cable operator, a BRS/EBS Written public comments are requested * * * * * provider, a direct broadcast satellite in the IRFA. These comments must be service, or a television receive-only filed in accordance with the same filing PART 76—MULTICHANNEL VIDEO satellite program distributor, who owns deadlines as comments filed in response AND CABLE TELEVISION SERVICE or operates a multichannel video to this Notice of Proposed Rulemaking ■ programming system. as set forth on the first page of this 1. The authority citation for part 76 (h) Multichannel video programming document, and have a separate and continues to read as follows: system. A distribution system that distinct heading designating them as Authority: 47 U.S.C. 151, 152, 153, 154, makes available for purchase, by responses to the IRFA. 301, 302, 302a, 303, 303a, 307, 308, 309, 312, customers or subscribers, multiple Initial Paperwork Reduction Act 315, 317, 325, 338, 339, 340, 341, 503, 521, channels of video programming other Analysis. This Notice of Proposed 522, 531, 532, 534, 535, 536, 537, 543, 544, than an open video system as defined by Rulemaking seeks comment on a 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573. § 76.1500(a). Such systems include, but potential new or revised information are not limited to, cable television collection requirement. If the ■ 2. Amend § 76.1200 by revising systems, BRS/EBS systems, direct Commission adopts any new or revised paragraphs (a) through (e) and adding broadcast satellite systems, other information collection requirement, the new paragraphs (f) through (m)to read as systems for providing direct-to-home Commission will publish a separate follows: multichannel video programming via notice in the Federal Register inviting § 76.1200 Definitions. satellite, and satellite master antenna the public to comment on the systems. requirement, as required by the (a) Affiliate. A person or entity that (i) Navigable Service. A multichannel Paperwork Reduction Act of 1995, (directly or indirectly) owns or controls, video programmer’s video programming Public Law 104–13 (44 U.S.C. 3501– is owned or controlled by, or is under and Emergency Alert System messages 3520). In addition, pursuant to the common ownership or control with, (see 47 CFR part 11). Small Business Paperwork Relief Act of another person, as defined in the notes (j) Navigation Devices. Devices such 2002, Public Law 107–198, 44 U.S.C. accompanying § 76.501. as converter boxes, interactive 3506(c)(4), the Commission seeks (b) Certificate. A document that communications equipment, and other specific comment on how it might certifies that a Navigation Device will equipment used by consumers to access ‘‘further reduce the information honor privacy, Emergency Alert System multichannel video programming and collection burden for small business messages, the Accessibility Rules in part other services offered over multichannel concerns with fewer than 25 79 of this Chapter, parental control video programming systems. employees.’’ information, and children’s (k) Open Standards Body. A standards Ordering Clauses. Accordingly, it is programming advertising limits. body (1) whose membership is open to ordered, pursuant to the authority (c) Compliant Security System. A consumer electronics, multichannel contained in Sections 4(i), 4(j), 303, conditional access system or link video programming distributors, content 303A, 335, 403, 624, 624A, 629, 631, protection technology that: (1) Is companies, application developers, and 706, and 713 of the Communications licensable on reasonable and consumer interest organizations, (2) that Act of 1934, as amended, 47 U.S.C. nondiscriminatory terms; (2) relies on a has a fair balance of interested members, 154(i), 154(j), 303, 303a, 335, 403, 544, Trust Authority not substantially (3) that has a published set of 544a, 549, 551, 606, and 613, that this controlled by any multichannel video procedures to assure due process, (4) Notice of Proposed Rulemaking and programming distributor or group of that has a published appeals process, Memorandum Opinion and Order is multichannel video programming and (5) that strives to set consensus adopted. distributors; and (3) is licensable on standards. It is further ordered that the terms that require licensees to comply (l) Service Discovery Data. Commission’s Consumer and with robustness and compliance rules. Information about available Navigable Governmental Affairs Bureau, Reference (d) Conditional access. The Services and any instructions necessary Information Center, shall send a copy of mechanisms that provide for selective to request a Navigable Service. this Notice of Proposed Rulemaking and access and denial of specific services (m) Trust Authority. An entity that Memorandum Opinion and Order and make use of signal security that can issues certificates and keys used by a

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Navigation Device to access Navigable distributor affords to its own 140, 1200 New Jersey Avenue SE., Services that are secured by a given application. Washington, DC, between 9 a.m. and 5 Compliant Security System. [FR Doc. 2016–05763 Filed 3–15–16; 8:45 am] p.m., Monday through Friday, except ■ 3. Revise § 76.1206 to read as follows: BILLING CODE 6712–01–P Federal holidays. • Fax: 202–493–2251. § 76.1206. Equipment sale or lease charge To avoid duplication, please use only subsidy prohibition. one of these four methods. See the After January 1, 2017, multichannel DEPARTMENT OF TRANSPORTATION ‘‘Public Participation and Request for video programming distributors shall Federal Motor Carrier Safety Comments’’ portion of the state the price for Navigation Devices Administration SUPPLEMENTARY INFORMATION section for separately on consumer bills. instructions on submitting comments, ■ 4. Add § 76.1211 to read as follows: 49 CFR Parts 383 and 384 including collection of information comments for the Office of Information § 76.1211. Information Necessary to [Docket No. FMCSA–2016–0051] and Regulatory Affairs, OMB. Assure a Commercial Market for Navigation FOR FURTHER INFORMATION CONTACT Devices. RIN 2126–AB68 : Mr. Selden Fritschner, CDL Division, (a) Each multichannel video Commercial Driver’s License Federal Motor Carrier Safety programming distributor shall make Requirements of the Moving Ahead for Administration, 1200 New Jersey available to each Navigation Device that Progress in the 21st Century Act and Avenue SE., Washington, DC 20590– has a Certificate the Service Discovery the Military Commercial Driver’s 0001, by email at Selden.fritschner@ Data, Entitlement Data, and Content License Act of 2012 dot.gov, or by telephone at 202–366– Delivery Data for all Navigable Services 0677. If you have questions on viewing in published, transparent formats that AGENCY: Federal Motor Carrier Safety or submitting material to the docket, conform to specifications set by Open Administration (FMCSA), DOT. contact Docket Services, telephone (202) Standards Bodies in a manner that does ACTION: Notice of proposed rulemaking 366–9826. not restrict competitive user interfaces (NPRM), request for comments. SUPPLEMENTARY INFORMATION: and features. (b) If a multichannel video SUMMARY: FMCSA proposes I. Executive Summary programming distributor makes amendments to its Commercial Driver’s Section 32308 of the Moving Ahead available an application that allows License (CDL) regulations that would for Progress in the 21st Century Act access to multichannel video ease the transition of military personnel (MAP–21) [Pub. L. 112–141, 126 Stat. programming without the technological into civilian careers in the truck and bus 405, July 6, 2012] required FMCSA to need for additional multichannel video industry by simplifying the process of undertake a study to assess Federal and programming distributor-specific getting a commercial learner’s permit State regulatory, economic, and equipment, then it shall make Service (CLP) or CDL. This rulemaking would administrative challenges in obtaining Discovery Data, Entitlement Data, and extend the time period for applying for CDLs faced by members and former Content Delivery Data available to a skills test waiver from 90 days to 1 members of the Armed Forces, who competitive Navigation Devices without year after leaving a military position operated qualifying motor vehicles the need for multichannel video requiring the operation of a commercial during their service. As a result of this programming distributor-specific motor vehicle (CMV). This rulemaking study, FMCSA provided a report to equipment. also would allow States to accept Congress titled ‘‘Program to Assist (c) Each multichannel video applications and administer the written Veterans to Acquire Commercial programming distributor shall support and skills tests for a CLP or CDL from Driver’s Licenses’’ (November 2013) at least one Compliant Security System. active duty military personnel who are (available in the docket for this (1) At least one supported Compliant stationed in that State. States that rulemaking). The report contained six Security System shall enable access to choose to accept such applications recommended actions, and elements of all resolutions and formats of the would be required to transmit the test this report comprise the main parts of multichannel video programming results electronically to the State of this rulemaking. These actions are: distributor’s Navigable Services with the domicile of the military personnel. The State of domicile would be required to (1) Revise 49 CFR 383.77(b)(1) governing same Entitlement Data to use those the Military Skills Test Waiver to extend the Navigable Services as the multichannel issue the CDL or CLP on the basis of time period to apply for a waiver from 90 video programming distributor affords those results. days to 1 year following separation from Navigation Devices that it leases, sells, DATES: Comments on this notice must be military service or otherwise provides to its subscribers. received on or before May 16, 2016. (2) Revise 49 CFR 383.77(b)(3) to add the option to qualify for a CDL based on training (2) Entitlement Data shall not ADDRESSES: You may submit comments discriminate on the basis of the and experience in an MOC [Military identified by Docket Number FMCSA– Occupational Specialty] dedicated to military affiliation of the Navigation Device. 2016–0051 using any of the following CMV operation (d) On any device on which a methods: (3) Revise the definitions of CDL and CLP multichannel video programming • Federal eRulemaking Portal: http:// in 49 CFR 383.5 and 49 CFR 384.212 and distributor makes available an www.regulations.gov. Follow the online related provisions governing the domicile application to access multichannel instructions for submitting comments. requirement, in order to implement the video programming, the multichannel • Mail: Docket Management Facility, statutory waiver enacted by The Military video programming distributor must U.S. Department of Transportation, 1200 Commercial Driver’s License Act of 2012 . . . support at least one Compliant Security New Jersey Avenue SE., West Building, This NPRM would ease the current System that offers access to the same Ground Floor, Room W12–140, burdens on military personnel applying Navigable Services with the same rights Washington, DC 20590–0001. for CLPs and CDLs issued by a State to use those Navigable Services as the • Hand Delivery or Courier: West Driver Licensing Agency (SDLA) in multichannel video programming Building, Ground Floor, Room W12– accordance with 49 CFR parts 383 and

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