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«January 21, 2016 Ms. Marlene H. Dortch Secretary Federal Communications Commission 445 12th Street S.W. Washington, D.C. 20554 Re: Ex Parte ...»

January 21, 2016

Ms. Marlene H. Dortch


Federal Communications Commission

445 12th Street S.W.

Washington, D.C. 20554

Re: Ex Parte Submission, MB Docket 15-64

Dear Ms. Dortch:

In their January 13 and 14, 2016 ex parte submissions discussing their respective

conversations with Commission staff, the “Consumer Video Choice Coalition” (CVCC),

Hauppauge, and TiVo repeat claims about their AllVid proposal that have previously been

thoroughly discredited or raise new claims that are equally meritless.

AllVid Redux CVCC seeks to position its recent proposal as new and forward looking, but it is essentially the 2010 AllVid proposal that the Commission declined to pursue. The chart attached as Exhibit A compares AllVid from 2010 with AllVid Redux from CVCC. The current version sports a new name but shares the same key features of the 2010 proposal – features that run counter to today’s apps-based market that has provided consumers with unprecedented choices in video, networks, services, and devices. Anyone who claims that the CVCC proposals do not share the characteristics of the 2010 FCC AllVid proposal – particularly as amplified by CVCC member comments during the DSTAC process – is either misinformed or willfully ignoring the facts.

AllVid Does Not Respect Content Licensing Or Deliver MVPD Service AllVid does not ensure that MVPD customers receive the “video programming and other services” offered by their MVPD, contrary to the requirements of Section 629. First, the AllVid proponents have made clear that they are not bound by existing content licensing agreements.

TiVo, for instance, flatly asserts that tech companies “are not and should not have to be bound to programming contracts entered into by MVPDs to which they were not party.”1 Second, under AllVid, consumers would lose the interactive enhancements of modern MVPD service, like being able to switch between multiple sports games or events or camera angles, viewing video- on-demand with full interactive “extras,” shopping by remote, or seeing the last channels they tuned from any of the many retail devices consumers use today to receive MVPD service.

1 Letter from Devendra T. Kumar, Counsel for TiVo Inc., to Marlene H. Dortch, Secretary, FCC, MB Docket 15- 64 at 1 (Jan. 13, 2016).

Ms. Marlene H. Dortch January 21, 2016 Page 2 The AllVid proponents suggest that the FCC could satisfy Section 629 by adopting a rule like the DFAST warranty that, among other things, requires third-party manufacturers not to impair cable operators’ service. That warranty clearly does not suffice. The DFAST warranty was developed nearly 15 years ago for unidirectional retail cable devices that received only linear cable channels, and was explicitly designed to be transitional until interactive devices received the apps needed to deliver interactive cable service.2 Moreover, the DFAST warranty has not even sufficed for one-way services. It has not stopped TiVo from overlaying ads on top of broadcast signals carried on cable or streaming signals out of the home without license. The fact that TiVo’s practices have not invited litigation may merely reflect TiVo’s limited market share, rather than demonstrating the success of the DFAST model..

The warranty is even less sufficient protection for the more complex and diverse programming rights that have emerged in the intervening 15 years for modern two-way services.

Modern rights include “electronic sell through” of a movie for consumers to buy and own; videoon-demand rentals for periods that precisely match content owners’ various release windows;

how many and which kinds of devices may receive the programming; whether and how programming can be streamed outside the home; whether the device may be trusted with high resolution 4K content; and opportunities for consumers to switch between multiple sports games or events or camera angles. These programming rights grow and change as MVPDs and content providers innovate and as content agreements are periodically renewed and renegotiated bilaterally. AllVid supports none of these offerings, let alone diversity and changes in these offerings. Rather, it takes cable service back in time, then removes the security and other tools (i.e., authentication, device caps, localization, DRMs and the applications) that enable and protect MVPD programming offers and underpin the programming distribution marketplace today.3 No warranty can overcome those deficiencies. For a warranty to protect against impairment of today’s service, it would need to prohibit AllVid.

AllVid Would Jeopardize Security

CVCC claims that “based on the DSTAC record and subsequent submissions,” DTCP-IP is the only suitable content protection system.4 That is flatly wrong. In developing its report on content security systems, DSTAC heard 50 technical presentations from 33 industry experts and assessed 16 different security solutions. During that review process, AllVid proponents on DSTAC did not make a single presentation on DTCP-IP or subject it to the same type of review applied to other security solutions. Neither content owners nor distributors treat DTCP as sufficient in itself. DTCP was designed nearly twenty years ago for the IEEE-1394 connector from one device to the one right next to it; DTCP-IP still serves as a local in-home protection to supplement other content protection technologies, not to supplant them. It has been slow to evolve and does not even support today’s offerings or IP multicast as DRMs do. By selecting DTCP-IP as the single protection technology, AllVid would create a single point of attack on all 2 WG4 Report at 149-50;.NCTA Reply at 44.

3 NCTA Reply at 25-36; Letter from Rick Chessen, NCTA to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64 at 2-5 (Jan. 15, 2016); NCTA Comments at 26-34.

4 Letter from Robert S. Schwartz, on behalf of CVCC, to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64, CS Docket 97-80 at 2 (Jan. 14, 2016).

2 Ms. Marlene H. Dortch January 21, 2016 Page 3 content on all MVPD networks, not just on AllVid devices. Even worse, because DTCP-IP does not support common encryption, MVPDs would be unable to switch quickly among competing DRMs in response to a successful hack.5 Section 629(b) expressly provides that the “Commission shall not prescribe regulations … which would jeopardize security of multichannel video programming and other services offered over multichannel video programming systems, or impede the legal rights of a provider of such services to prevent theft of service.” Adopting AllVid would violate that prohibition.

AllVid Would Require Consumers To Obtain a Government-Mandated Box

AllVid proponents claim that their proposal is “simply software that could run on existing equipment in the home, such as a cable modem or satellite receiver box, or could run in the cloud.”6 But this claim has long been discredited. AllVid requires DTCP-IP localization tools7 that do not work from the cloud, and offers UPnP specifications that are designed only to let individual consumer-owned devices find each other on local home networks, not for connecting all MVPD households and devices to the cloud. The simple fact is that AllVid would require MVPDs to provide a government-designed intermediary box to interface with retail devices in the home. It is therefore unsurprising that even the supposed “demonstration” by Google of AllVid relied on a second box in the home.8

AllVid Does Not Protect Privacy

AllVid proponents also claim that no one should worry if tech companies are exempt from the privacy protections afforded cable subscribers under Title VI, on the theory that these tech companies remain subject to “various state laws.”9 But that claim does not withstand further scrutiny. Consider the cable privacy law in California, home to Google and TiVo: the rule only applies to “cable” and “satellite,” and the tech companies say they are neither.10 Or consider New York, home to Hauppauge: it has no cable privacy law. In short, AllVid would 5 NCTA Reply at 35-36; Letter from Rick Chessen, NCTA to Marlene H. Dortch, Secretary, FCC MB Docket 15at 2-3 (Jan. 15, 2016).

6 Letter from Robert S. Schwartz, on behalf of CVCC, to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64 at 1 (Jan. 14, 2016).

7 DTCP-IP caps the number of connected devices at 34 and seeks to keep content in the home by limiting the round trip time and number of “hops” it takes to reach a connected device. Those security requirements do not work with cloud delivery. Letter from Rick Chessen, NCTA to Marlene H. Dortch, Secretary, FCC MB Docket 15-64 at 2 (Jan. 15, 2016).

8 Letter from Angie Kronenberg, INCOMPAS, on behalf of CVCC, to Marlene H. Dortch, Secretary, FCC MB Docket 15-64 (Dec. 14, 2015); Letter from Rick Chessen, NCTA to Marlene H. Dortch, Secretary, FCC MB Docket 15-64 at 2-3 (Jan. 15, 2016); Letter from Neal Goldberg, NCTA to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64 (Dec. 18, 2015); Letter from Neal Goldberg, NCTA to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64 (Jan. 13, 2016); NCTA Reply Comments at 27.

9 Letter from Robert S. Schwartz, Counsel for Hauppauge Computer Works, Inc., to Marlene H. Dortch, Secretary, FCC, MB 15-64, CS Docket 97-80 at 2 (Jan. 14, 2016); Letter from Devendra T. Kumar, Counsel for TiVo Inc., to Marlene H. Dortch, Secretary, FCC, CS Docket 87-80, MB Docket 15-64 at 2 (Jan. 13, 2016).

10 Cal. Penal Code §767.5.

3 Ms. Marlene H. Dortch January 21, 2016 Page 4 allow Google and other tech companies to evade the consumer privacy protections adopted in Title VI and collect and monetize consumers’ personal viewing data.11

–  –  –

AllVid proponents also claim that their approach delivers EAS “of a standard nature,”12 but AllVid proponents ignore the fact that MVPD networks use many different emergency alert protocols, not just the one simulated by Google. CVCC has refused to answer how it will support EAS on these diverse networks.

*** AllVid proponents invoke innovation and competition, but their proposal would interfere with both. AllVid would slow innovation by requiring MVPDs to develop and invest in a new government-designed in-home box that would lock in legacy digital service and slow network innovation and migration to IP.13 AllVid would prevent MVPDs – and only MVPDs – from meeting their programming obligations. AllVid would undermine the content licensing marketplace that is fueling unprecedented consumer choice in video, service providers, and devices.14 Notably, AllVid proponents no longer claim that their proposal would simply apply “offthe-shelf” technology “in common use by MVPDs today,” as they used to repeatedly and wrongly claim.15 Their shift confirms that developing AllVid would divert MVPD resources and investment from creating apps for more platforms, from expanding cloud-based services that could reduce consumers’ need for set-top boxes, and from meeting ever evolving consumer demand. All MVPD customers would pay the costs, whether or not they want AllVid.

11 See, e.g., Andrea Peterson, This Smart TV Takes Tracking To A New Level, WASHINGTON POST (Nov. 12, 2015) https://www.washingtonpost.com/news/the-switch/wp/2015/11/10/this-smart-tv-takes-tracking-to-a-new-level/ 12 Letter from Robert S. Schwartz, Constantine Cannon LLP, on behalf of CVCC, to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64, at 2 (Jan. 14, 2016).

13 NCTA Reply at 31, 35-36; Letter from Paul Glist, Counsel to NCTA to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64 at 3 (Jan. 13, 2016).

14 Letter from The Walt Disney Company et al to Marlene H. Dortch, Secretary, FCC, MB Docket 15-64 (Jan. 14, 2016); Letter from Rick Chessen, NCTA to Marlene H. Dortch, Secretary, FCC MB Docket 15-64 at 5-6 (Jan.

15, 2016).

15 See, e.g., Public Knowledge Comments at 18; Hauppauge Comments at 2; Letter from Angie Kronenberg, INCOMPAS, on behalf of CVCC at 1 (Dec. 14, 2015).

4 Ms. Marlene H. Dortch January 21, 2016 Page 5 If you have any further questions, please contact me.

–  –  –

6. Increased Security Risks.

MVPDs would have to use a common content protection method (DTCP-IP), creating a single point of attack for hackers. DTCP-IP also does not support today’s rapidly evolving video business models.

7. Forced Access to Guide Data.

MVPDs would be required to provide program guide data which they do not own to retail devices, thereby exceeding their licenses with guide data suppliers.

8. No Support for Apps.

MVPDs would have to implement an inflexible, one-size-fits-all technology mandate that ignores the video marketplace transition to apps and creates a drag on innovation in the highly dynamic video device marketplace.

9. Delays Migration to Next-Generation Systems and Technologies.

MVPDs would have to support an expensive legacy technical solution, thereby interfering with plans to deploy next-generation systems and technologies (e.g., IP cable, IPv6).

10. Relies on Yet To-Be-Invented Standards.

The proposal relies on standards not yet invented or implemented and would take years to develop – by which time the “solution” will likely have become outdated.

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