Gemstar Renews EPG Fight

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Gemstar-TV Guide International Inc. has warned of widespread discrimination by the cable industry unless 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 with 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 the vertical blanking interval of broadcast-TV signals.

Because Gemstar's EPG contained information on numerous channels along with promotions and advertising, the FCC held that 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 context of digital TV, in part because digital broadcast signals do not contain VBIs.

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 the 1982 copyright case WGN Continental Broadcasting Co. vs. United Video Inc.— to EPGs carried by digital TV stations.

Were the WGN test used to scuttle mandatory cable carriage of EPGs via DTV broadcast signals, Gemstar said, consumers would be denied a "dizzying array" of enhancements at the whim of cable operators. Those operators plan to use control of their own set-top EPGs to drive viewers to proprietary content and interactive services, Gemstar further alleged.

"Cable should not be allowed, for what can only be anti-competitive reasons, to block viewers' access to these free digital-television enhancements," Gemstar said in the 11-page filing. "An overly restrictive view of program-related would assure such an outcome."

In a Feb. 1 speech in Washington, FCC commissioner Kevin Martin said the agency "should quickly conclude" the year-old rulemaking in which the meaning of "program-related" in context of digital broadcasting has been tied up.

Martin did not say whether he supported Gemstar's position.

"Regardless of the outcome, merely concluding the proceeding will help the transition by providing certainty to the industry," said Martin, a Republican.

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