My Insanely Long Field Guide To The War On CableCARD — Part II: STAVRA Section 203.

When it comes to special interest sleaze, Section 203 of the Satellite Television Access and Viewer Rights Act (STAVRA) is just an absolute brilliant work of art. We like to talk about how much money cable throws around, about Comcast Chief Lobbyist David Cohen golfing with President Obama, yadda yadda yadda. But that is just crude muscle.  Getting a blatantly anti-consumer provision inserted in a pro-consumer bill behind the scenes, and getting it rammed through by a combination of obscurity, chicanery and log-rolling, is where that army of lobbyists earns their 6-and-7 digit salaries.

 

I gave the whole bloody history in The War on CableCARD Part I: More Background Than You Can Possibly Imagine. To review, Section 203 of Stavra (and its matching provision in the House STELLA 2014 bill) cripples CableCARD  by eliminating the “integration ban.” This effectively ends any hope third party devices will compete with the cable industry, and we remain stuck leasing digital video recorders (DVRs) and set-top boxes (STBs) and other equipment and services from cable operators rather than owning our own or using cheaper, better rival services. Consumers pay over $1 billion in rental fees annually to cable operators for equipment they could otherwise own. So eliminating the integration ban (and thus killing CableCARD) pretty much condemns consumers to keep getting gouged for the foreseeable future just when independent equipment like the TiVo Romaio is finally starting to take off.

 

To add to the special interest sleaze factor, Section 203 of STAVRA converts a pro-consumer bill (that was originally a lot more pro-consumer) into a billion dollar rip off of consumers for the profit of one of the most loathed industries in America. And it does so in such a subtle way that it is almost impossible to detect. AND it comes with a fake pro-consumer ‘solution’ so the cable industry (and, more importantly, members of Congress seeking cover) can claim to have the best interests of consumers at heart.

 

Happily, it has an easy fix and a champion to convert this back into an actually good pro-consumer bill and have this blow up all over the cable guys so that they will be hoist by their own petard. Oooh, such justice would be sweet. And eminently achievable.

 

If you want the short version of this, without the appreciation of all amazing special interest sleaziness, you can see these Public Knowledge blog posts: here, here, here and here. But if you want the full TotSF treatment with all the wonk and snark you’ve come to expect from yr hmbl obdn’t blogger, then see more below . . . .

 

 

Could You Please Stop Teasing/Recapping Your Intro and Get On With This?

 

Right. The vehicle for our special cable Section 203 sleaze is the Satellite Television Access And Viewers Rights Act (STAVRA) (S. 2799) and its companion bill in the House, The STELA Reauthorization Act of 2014 (H.R. 4572).

 

Satellite Television providers (aka Direct Broadcast Satellite (DBS), aka DIRECTV and DISH) have special permission to provide “out of region” broadcast channels to a couple of million subscribers who otherwise would not be able to get the channels because actual terrain is sufficiently different from market definition that the regular broadcast signal is not receivable (see 47 U.S.C. 325(b)(2)(C)) For reasons that I can’t explain, rather than pass a permanent fix to this, Congress only extends this special permission in 5 year chunks. That means that every 5 years, Congress has to repass this provision or a couple of million rural subscribers in lots of states can no longer decide whether to watch Agents of S.H.E.I.L.D. or Flash in the coveted “superhero” timeslot.

 

Because lots of rural people will totally flip out and call Congress if they lose their TV channels, re-authorizing this particular provision is considered “must pass” legislation. As always in D.C., if you are a special interest lobbyist, the goal is to get your provision into a piece of must pass legislation because it is, well, “must pass.” Since this is everyone’s goal, you will generally hear the people in charge of moving the bill proclaim that they want a “clean” bill that does not have a lot of “Christmas ornaments” attached in the form of special interest provisions. At the same time, must pass bills are also targets for legislators trying to get positive reforms through, since the bill is “must pass” and it is therefore possible to get past special interest objections to good stuff — assuming you can run the special interest gauntlet and get the pro-consumer stuff out of Committee.

 

The STELA/STAVRA issue is further complicated by the fact that, for reasons I will not get into now, both the Judiciary Committee and the Commerce Committee have jurisdiction. So you can get up to 4 different versions of a bill to reauthorize the DBS distant signal thing passed by various committees.

 

Cable And The Integration Ban

 

People have more than the usual number of goodies they are pissed about in video. Cable guys and broadcasters are fighting over reforming the retransmission consent process. Consumer groups such as my employer Public Knowledge have pushed for reforms on various abusive billing practices and fees, as well as clarifying FCC authority to do more on retrans. So its been kind of a free for all in the fight to reauthorize STELA/STAVRA.

 

The cable guys zeroed in on getting rid of the integration ban, which would effectively kill CableCard. Remember, the whole reason we have CableCard is because of the integration ban, and the reason we have the integration ban (which prevents cable from providing a set top box or device which integrates both security and functionality) is because if you integrate the security access with the capability of the device the cable operators can (and will) make it effectively impossible for third party devices to interconnect. Getting the House to repeal the integration ban was, of course, no biggie. The House Republicans already hate the FCC and think pro-consumer and pro-competition regulation is Obamacare for the Internet or some such.

 

In the Senate, with STAVRA, things proceeded very differently. Commerce Committee Chair Senator Jay Rockefeller (D-WV) and Ranking Member Senator John Thune (R-SD) spent a bunch of time crafting a deal that would have done a fair amount to reform the existing video market in a good way – particularly with regard to things like retrans reform and giving consumers options for unbundled programming (that was the “Local Choice” part of the “Viewers Rights” in the name). As part of this deal, they agreed to Section 203 of the proposed STAVRA, which kills the integration ban, thus killing CableCARD, and thus squashing the growing market for set-top boxes and DVRs you can actually own rather than rent for ridiculous fees from the Cable Overlords.

 

Broadcasters, of course, declared total war. Sadly, it only took about a week for the broadcasters to get nearly everything that would have made such a trade off worthwhile stripped out of the bill. Compare this original text as introduced with this version that actually passed out of Committee. But guess what special interest provision survived?

 

The Death To The Integration Ban Provision?

 

Bingo! Needless to say, all the special interest guys were uber-pleased, while the consumer protection folks were uber-pissed.

 

Sounds Like A Typical Day In The Sleaze Pit We Know As Congress. What Makes This Such A Work of Art?

 

Lets look at the language of Section 203. It does not declare in bold letters “Repeal of Integration Ban” or “Death to CableCARD” or something obvious like that. In a section entitled “Competitive Device Availability” (that sounds promising, right?) the statute requires:

 

“203(a)(1) New Navigation Devices – the second sentence of Section 76.1204(a)(1) of Title 47 of the Code of Federal Regulations terminates effective on the date that is 2 years after the date of enactment of this Act.”

 

Man, that is just friggin’ brilliant. First, it is camouflaged by its shear boringness. Even if you know telecom, you won’t spot this unless you know that this one sentence in all the cable regulations is the lynchpin of CableCARD – because it is the sentence that creates the integration ban, and it is the integration ban (you remember the integration ban? This is a song about the integration ban) that makes CableCARD work.

 

Heck, it took me 4500 words (since y’all read Part I, right?) just to be able to explain what that one sentence does and why it matters and how eliminating that single sentence translates into preserving the ability of cable operators to gouge consumers. Can you imagine me calling some intrepid reporter – even an industry reporter generally familiar with the issue – and trying to explain it? That would be a 45 minute phone call just to give the reporter the background. And is anyone going to believe that eliminating that one sentence is going to make that big a difference? Can you imagine Sunlight Foundation or Center for Public Integrity or one of the other good government groups being able to sift through and find this and explain what it does?

 

Good grief, even rallying members of Congress outside the Committee is hard to do against something this obscure.

 

This is a special interest surgical strike under cover of boredom. I do not know who drafted this, but that cable lobbyist deserves a prize.  I . . . am . . . . in . . . friggin’ . . . AWE!

 

But it gets even better. It also includes the classic cover in case anyone does figure it out – the “fake solution maneuver.”

 

What’s The Fake Solution Maneuver?

 

The Fake Solution Maneuver is when you have language in the statute that pretends to address your concerns but really doesn’t. Bonus points if the reason why the solution is a fake solution is also highly complicated, technical or obscure.

 

Here, Section 203(b) requires the FCC to create a working group to come up with a better technology than CableCARD. Hey cool! We all agree that CableCARD is not nearly good enough. So isn’t this ever so much better – to have a working group that comes up with a better technology to replace CableCARD? And look, the working group will issue its report 540 days after enactment of the Act – or about 6 months before the integration ban goes away. Problem solved, danger averted. Right?

 

But note the little detail that while the working group must issue its report and recommendation 1.5 years after passage of the Act, the FCC is under no obligation to actually adopt any replacement technology. Given that the cable industry very successfully prevented even CableCARD from getting adopted and deployed for 10 years, I have no trouble believing that the cable industry can throw sand in the gears for a measly 6 months — especially with the help of their enabling happy lap dogs in the Media Bureau (Motto: ‘We Earn Our Comcast Milkbones, Dammit! Show Some Respect!’).

 

So We’re Doomed?

 

Happily, we are not yet doomed. In fact, with the help of Senator Markey, we can flip this around to actually become something good! Or at least create enough pressure to get Section 203 stripped out of STAVRA (and the analogous provision stripped out of the House STELA 2014 verision).

 

OK, I’ll Bite, How.

 

Markey has an amendment that will make one minor change to Section 203. Instead of eliminating the integration ban automatically 2 years after the bill passes, the Markey language would eliminate the integration ban when the FCC actually adopts a better successor technology.

 

Oooh . . . . That Is Clever! Stick It To The Cable Guys With Their Own Special Interest Provision.

 

Exactly! Unfortunately, getting support for the Markey Amendment, or even just getting Section 203 stripped out of the bill to protect the status quo, will take a lot of work. In the Committee, both Chairman Rockefeller and Ranking Member Thune want this bill to go through (they are from rural states where lots of DBS subscribers will lose access to network broadcast channels if the law is not renewed), and both have made it clear they will to throw this tidbit to cable to grease the wheels. As for the rest of the Senate — did you notice it took me over 5000 words to explain this? Most members will just follow the leadership on this and vote for the bill.

 

But the Senate rules allow a bunch of dedicated members who care about something to gum up the works. Markey has already put a “hold” on STAVRA to prevent it from getting passed without any debate or opportunity to amend. Markey needs help from other Senators. If we can get enough Senators to stand with Markey and place a hold on the bill, then those who want the bill passed will either need to pass the Markey Amendment or strip Section 203 out of the bill altogether.

 

So What Has To Happen?

 

Well, we need to get the word out, and get people to tell their Senator that they hate Section 203 of STAVRA and they should support Markey in holding up or amending the bill. The Official bill number is S. 2799 if you are feeling so inclined.

 

If we look like we’re gaining ground here, then members of Congress trying to get the actual must-pass satellite TV part through will try to stick that part of the bill onto a funding bill (because Congress will need to pass a bunch of funding bills in the lame duck session after the election to keep the government open). We can expect the cable guys to try to get the “death to the integration ban” provision included. We will need to be prepared to keep that language out of any appropriations rider.

 

Conclusion

 

I know this isn’t net neutrality, aka “The Most Important Issue Ever Or At Least ‘Til Something Better Comes Along.” This is just one more way that cable operators rip off customers, not the future of the Internet. But for that very reason, this sort of special interest maneuvering gets me particularly pissed. It’s the essence of soft-corruption that makes everyone so cynical about our democracy. Congress passes a law that allows a powerful industry special interest group to gouge consumers even more, under cover of protecting consumers. Ho hum. It’s very banality gives it camouflage, while the cynical smile to see their wisdom confirmed.

 

But, as we can see here with Ed Markey and others in the Senate, there are members of Congress will to stand up for what’s right. There are members of Congress who do stand up for consumers and do the right thing. And it would be nice if, just for a change, just to keep things interesting, just to keep things from getting too predictable, the public could get its act together to care about something that isn’t “The Most Important Issue Ever” but is just “Don’t Let The Cable Industry Keep Ripping Everyone Off.” If we could get enough people to give a crap about not getting ripped off, just enough to call their Senator and tell them to stop STAVRA unless they pull Section 203, we could stand the cynical conventional wisdom on its head.

 

I don’t know about you, but that would make me very happy.

 

Stay tuned . . . .

 

Part I: More Background Than You Can Possibly Imagine

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One Comment

  1. DJ says:

    Thanks for the great writeup. I am with you 1000% on the importance of congressional oversight on those scum sucking vampires, the cable companies.

    That said, I do have to say that my experience of using CableCard on TiVo for quite a few years now hasn’t been quite as dire as you describe. Yes, it’s a pain to set up, and yes, I do have to call tech support probably 2 or 3 times a year to fix an issue (you didn’t even mention SDV and tuning adapters, which to me are by far the biggest culprits). So I’ll grant that it kind of sucks. But the technicians and even phone support people I’ve talked to have mostly not seemed like they’re trained to make it impossible for me. While they see TiVo and Cable Cards as a strange, wondrous creature, they do try to solve the problems as quickly as possible and I’ve never once been the subject of a hard sell or even a soft sell to go with the company cable box. Since I’ve moved once in the era of Cable Cards, I’ve had the chance to see this basically okay behavior from both Time Warner and Cox.

    Ah, there’s the real issue for me. I had to move to experience a different cable company. It’s the lack of true competition that causes the problem. If Congress could somehow open up the last mile to competing cable companies, then many of these issues might not be so horrific. I’d jump to satellite in a second, but using TiVo has spoiled me for anybody else’s UI.

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