FCC Decision on HDTV Encryption for Movies Seems Close
An FCC decision on a request by six movie studios to use HDTV encryption to stream films to cable- and satellite-TV providers before they go on DVD and Blu-ray seems closer, said numerous commission and industry officials. The Media Bureau especially has been giving the May 2008 waiver request by MPAA considerable attention in recent weeks, they said. Most commissioners aren’t heavily involved in the issue, they said, but others said some offices are taking an interest in it. Supporters and opponents of the request agree the commission has enough information to make a decision (CD Oct 2 p8).
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Opponents and proponents of the waiver believe it may be poised to get conditional approval (CD Nov 5 p14) based on recent comments from FCC staffers. But commission officials said on Thursday that no decision has been made. “It’s being actively worked” on by the bureau, Chief Bill Lake said. “We are very much looking at the issue and trying to assess whether the waiver standard is met in this case. But we haven’t begun to write” a decision.
The FCC considers the waiver request ripe for consideration because it’s been pending for some time and the MPAA and opponents such as the CEA and Public Knowledge are pushing for a decision, said another commission official. It may be weeks before the bureau sends its recommendation on how to proceed to the office of Chairman Julius Genachowski, and it’s possible a recommendation won’t even come this year, the person said. Bureau staffers don’t appear to have decided whether they think the waiver needs a vote or can be decided on delegated authority, said multiple agency officials.
In the past the FCC has seemed poised to make a decision and didn’t act, most recently toward the end of the chairmanship of Kevin Martin. A repeat of the past is unlikely, and a decision likely will be made soon, said commission officials. The bureau seems to have authority to act on the waiver without a vote and right now seems inclined to do that, said industry executives.
Some who've recently met with commission staffers thought the bureau was likely to conditionally approve the waiver request, they said. “It was certainly our impression that they regarded the record as complete and ready for action,” said Legal Director Harold Feld of Public Knowledge, among the waiver’s opponents. “I would hope that they have been persuaded that the record still does not support any conclusion but a denial of the application.”
“Based on our meetings with the bureau, it appeared to us that they were leaning toward granting it with some restrictions,” said Vice President James Hedlund of CEA, another opponent. “The Media Bureau has delegated authority to grant the waiver or deny it. They could kick it up to the eighth floor.” The lobbying group “would be thrilled by a denial -- whether it comes from the bureau or the commission. We also would be happy with no action on it, because that’s effectively a denial.” As many as 25 million HDTV sets couldn’t get the streamed movies because they lack digital outputs, and even sets with outputs might be cut off, he said.
MPAA representatives contend it has offered ample evidence for the waiver to be approved. Use of selectable output controls “would be an incredibly pro-consumer development,” the group said in a filing Wednesday. “Studios could distribute first-run movies in high-definition directly to television sets close to or at the same time that those very movies are released in theaters. … The waiver would spur competition in the multichannel video programming marketplace, as studios work with distribution partners to provide consumers different ways to access content in their homes.”