WASHINGTON D.C. —  TechFreedom and the Competitive Enterprise Institute filed comments Friday opposing the FCC’s plan to force video providers to open up programming to be used on set-top boxes from third-party providers. The FCC claims its “Unlock the Box” proposal is necessary to increase competition in video and allow consumers to access programming without having to lease a set-top box from their multichannel video programming distributors (MVPDs). But the industry is already moving to “Eliminate the Box” by offering programming in their own apps.

A technical advisory committee convened by the FCC last year issued two alternative recommendations. The Apps-Based Proposal would have ensured that all MVPDs make such apps available, ending the need for leasing a set-top box from the MVPD. But the FCC completely ignored this proposal, and instead focused only on the alternative proposal that requires MVPDs to unbundle their content so that third-party developers can repackage it into their own apps. This, in turn, creates a host of privacy and piracy problems while, ironically, entrenching the set-top box.

The FCC’s proposal makes for good headlines, but it’s doomed to fail in court,” warned Berin Szóka, President of TechFreedom. “The ‘96 Telecom Act commands the FCC to ensure the availability of ‘devices’ and ‘equipment’ from independent parties. The Apps-Based Proposal would have ensured that Americans could watch their MVPD’s content on whatever device they like — on the MVPD’s app. Yet the FCC seems to think that having to toggle between the Xfinity app and Netflix constitutes a national emergency requiring the agency to rewrite the statute. It takes colossal chutzpah to claim that an app can be a ‘device’ — a claim that is obviously absurd to anyone who’s bothered to read the 1996 Telecom Act. The idea should also be chilling to those who’ve long assumed that Silicon Valley was safe from the FCC’s imperialism. As with last year’s Open Internet Order, the FCC has erased whatever line that might once have separated software from hardware and infrastructure.”

This is part of a consistent pattern — from net neutrality to prison payphone rates, the FCC simply does not care what its statutes say,” continued Szóka. “Chairman Wheeler does precisely what D.C. Circuit Judge David Tatel warned about when he said that all too many ‘agencies choose their policy first and then later seek to defend its legality.’ It’s not just bad lawyering or the fact that the courts have upheld all kinds of insane interpretations under the deferential standard of Chevron. No, the real point is populism: winning in court matters less than focusing the media fight on issues like this, which are obviously huge winners for the Digital Left and losers for Republicans who have struggled to explain just how cynical the FCC’s moves really are. This is now the third time that President Obama has interfered with the supposedly independent FCC, casting aside any pretense that the outcome of an FCC proceeding isn’t predetermined by ideology.”

The most bizarre part of the NPRM is that it invokes an obscure provision that gives the President sweeping powers in wartime and emergencies,” concluded Szóka. “It’s hard to decipher the FCC’s passing reference to Section 706 of the 1934 Communications Act in the ‘legal authority’ paragraph at the end of the NPRM. But the idea of using this dormant Internet kill-switch should terrify those who imagine the FCC is on the side of ‘Internet Freedom.’ It’s certainly possible the FCC meant to cite Section 706 of the 1996 Telecommunications Act. That’s the one the FCC has claimed allows it to regulate any form of communications in any way that promotes broadband — also an absurd claim that gives the FCC sweeping powers over the entire Internet. Ether Wheeler already has his hands on the kill-switch or his legal staff is even more cavalier about reading their statutes than anyone could have imagined.”

The table of contents of our comments provides a succinct summary of our arguments against the FCC’s order.


We are available for comment at media@techfreedom.org. See our other work on video markets and promoting broadband deployment:

  • Our statement on the FCC’s rushed NPRM on regulating set-top boxes
  • Our statement on the FCC’s announcement on unlocking the set-top box market
  • Comments from TechFreedom, ICLE, and CEI urging the FCC not to regulate online video providers in the same way as cable
  • Intervenor Brief and Reply Brief of TechFreedom on the FCC’s Open Internet Order