CEA Challenges Charter's FCC Set-Top Waiver

Says Media Bureau decision is illegal and sets dangerous precedent

The Consumer Electronics Association Monday asked the full commission to reconsider the Media Bureau's grant of a conditional waiver to Charter for set-tops with downloadable security.

The FCC in 2007 instituted the prohibition on set-tops that combine channel surfing with security. Cable ops were required to use a removable CableCARD security add-on, a move the FCC hoped would goose the retail market, though it conceded at the time that a downloadable software security option would be preferable to the hardware in the long run. It has since conceded that the ban has not spurred that retail market.

The bureau in March granted the two-year waiver with a number of conditions, but ones CEA suggests are too aspirational to be effective.

In a petition to the FCC  filed Monday (May 20, the deadline for the challenge) CEA asked the full commission to review and, preferably, rescind, the waiver. CEA said the bureau lacks the authority to relax the regulations. It also argues that the waiver "establishes a basis for Charter and other operators to assert to the Commission and to a reviewing court that any nominally “downloadable” security system" will do. That, CEA suggests, could severely undercut the FCC's goal of "the commercial availability of navigation devices from manufacturers and vendors not affiliated with cable operators

CEA argues that while Charter initially said it would continue to support CableCARD hardware, the waiver does not require it to do so, or to insure that its downloadable security is compatible with retail boxes. One of the conditions is that Charter attest that it is making "good faith efforts" to negotiate the development of a compatible set-top box, but it does not mandate a successful resolution.

"The Bureau’s Order, like the Charter Request, deals in assumptions and hopes rather than in facts," says CEA, referring to that and other conditions.

CEA said the waiver "exceeds both [the Media Bureau's] own delegated authority and the Commission’s legal authority," and sets a dangerous precedent.

"The Commission cannot let stand this nullification of law and regulation, without process or public comment. Unless the Commission reviews and rescinds this Order the Bureau will have erased the core obligation of cable operators under Section 629 to support competitive devices, without any factual or legal finding to support this result, or any Public Notice.

CEA representatives met with commission officials in the past several weeks to argue that the waiver went too far--in essence giving Charter more than it had even asked for--and that the fact that it does not require the boxes with downloadable security also to be CableCARD compliant--Charter argued it would be too expensive and delay the move to digital security--will encourage others to seek the waivers and effectively eviscerate the requirement of separating the security and surfing functions and the goal of spurring a market in the retail set-tops.

CEA back in December asked the FCC to deny the waiver, calling its proposal a "nominal and partial 'solution' that cannot fairly be projected to work in the real world."

An FCC spokesperson was not available for comment on the challenge.