FCC Votes To Lift Ban On Digital Basic Tier Encryption

Contains Three-Year Sunset on NCTA Commitment, But With Media Bureau Able to Extend It

The FCC is said to be wrapping up its order lifting the prohibition on digital basic-tier encryption.

Commissioners were said to be working on statements at press time and the chairman was said to be pushing to get the order out by end of day. According to a high-placed source, the vote will be 5-0, but with some concurrences.

FCC chairman Julius Genachowski circulated an order in August allowing cable operators to encrypt digital basic tiers that incorporated some accommodations for IP-enabled devices -- like Boxee -- offered up by cable operators to help secure passage of the item.

In a July 25 letter to the FCC, in response to complaints by Boxee and others about the inability of such devices to access programming on basic tiers once they are encrypted, the National Cable & Telecommunications Association said that it thought the concerns were misplaced, but that its six largest members would make a three-year commitment to ensuring those devices could receive a signal through one of two options, both pertaining to retail boxes.

According to a source familiar with the order, it does include a three-year sunset on that commitment, but allows the Media Bureau to extend it. That did not sit well with the Republican members of the commission, according to an FCC source, who thought that decision should have to be made at the commission lever. That was said to be one of the reasons there will be partial concurrences rather than unqualified yes votes. The other concern is over a severability clause that means if a court strikes down any portion of the FCC decision, all of it is invalidated and the ban would be back in force.

The commission signaled last fall it wanted to remove the ban, which cable operators had asked it to do.

The FCC adopted the rule prohibiting cable operators from scrambling digital basic tiers so that viewers with cable-ready sets would not have to buy or rent a set-top box. Now, because of the cost savings to cable operators, the reduction in pollution from fewer truck rolls, theft-of-service prevention, and the general lack of complaints in markets where the agency had granted waivers -- most prominently to Cablevision Systems in New York in 2010 -- the chairman signaled it was time to lift the ban.