Gemstar-TV Guide International Inc. is warning of widespread discrimination by
the cable industry unless cable operators are forced to carry its digital
electronic program guides.
'This means protecting independent, broadcast-delivered EPGs from
cable-system interruption,' Gemstar said in a Jan. 25 filing at the Federal
Communications Commission. 'Carrying-broadcast delivered EPGs would impose no
burden on cable operators.'
In December, the FCC ruled that under applicable legal standards, cable
operators are not required to carry Gemstar's analog EPG, which is embedded in
local broadcast signals on the vertical-blanking interval.
The FCC held that because Gemstar's EPG contained information on numerous
channels, along with promotions and advertising, it was too broad a product to
fit within the three-part legal test for defining 'program-related material'
entitled to mandatory cable carriage.
In deciding the case -- a victory for Time Warner Cable -- the commission
noted that it was still trying to establish the contours of 'program-related' in
the digital context, in part because digital-broadcast signals do not contain
In addition to seeking reconsideration of the decision on the analog EPG,
Gemstar is asking the FCC to refrain from applying the three-part test -- also
called the WGN test, after 1982 copyright case WGN Continental Broadcasting
Co. vs. United Video Inc. -- in the context of EPG carriage on
Gemstar alleged that if the WGN test were used in the digital context to
scuttle mandatory cable carriage of EPGs on digital-broadcast signals, consumers
would be denied a 'dizzying array' of enhancements at the whim of cable
operators, which, Gemstar further alleged, plan to use control of their own
set-top EPGs to drive viewers to proprietary content and interactive
'Cable should not be allowed, for what can only be anti-competitive reasons,
to block viewers' access to these free digital-television enhancements. An
overly restrictive view of program-related would assure such an outcome,'
Gemstar said in the 11-page filing.
In a Feb. 1 speech in Washington, D.C., FCC commissioner Kevin Martin said
the agency 'should quickly conclude' the year-old rulemaking where the meaning
of 'program-related' in context of digital broadcasting is teed up.
Martin did not disclose whether he supported Gemstar's position.
'Regardless of the outcome,' said Martin, a Republican, 'merely concluding
the proceeding will help the transition by providing certainty to the