NCTA and ACA pounce on FCC statement, says its set-top plan exceeds Communications Act authority

In separate conference calls with news reporters today, the NCTA and the ACA said the FCC is stepping outside its jurisdiction in trying to rewrite rules governing the leasing of pay-TV set-tops.

Flanked by his group's top lawyers, Michael Powell, president and CEO of the National Cable Telecommunications Association, said that Article 629 of the Communications Act only authorizes the FCC to ensure that pay-TV consumers have a competitive market for devices and does not specify the agency's authority over services themselves. 

"What they're proposing exceeds the statutory parameters of what they're required to operate under," Powell said, referring to the FCC and its Chairman, Tom Wheeler. 

Also flanked by his legal staff, American Cable Association president and CEO Matthew Polka also cited the limits of Section 629, calling the FCC's proposal "unlawful."

Powell specifically noted a statement released by the FCC Wednesday, which was in response to Comcast's (NASDAQ: CMCSA) announcement of a new program to work with third-party device venders including Samsung and Roku, integrating set-top capabilities into their devices and dispensing of the boxes themselves.

"While we do not know all of the details of this announcement, it appears to offer only a proprietary, Comcast-controlled user interface and seems to allow only Comcast content on different devices, rather than allowing those devices to integrate or search across Comcast content as well as other content consumers subscribe to," the agency said in a statement. 

That language, Powell said, is a clear indicator that the FCC's plan goes beyond regulating set-tops and infiltrates into MVPD services themselves. 

"It was an interesting day," Powell said. "You would think [Comcast's announcement] would be a complete answer to what 629 requires."

The ACA, meanwhile, added a second tier to its messaging: If the FCC does decide to go ahead with what it describes as a government over-reach, it should only apply the mandate to MVPDs with 600,000 or more video subscribers.

Executing the proposal, the ACA said, would require the org's constituency of smaller operators to furnish each of their subscribers with a gateway device capable translating QAM-based signals to IP. These smaller operators are simply not able to afford the expense of satisfying the mandate.

As for the larger operators, ACA VP of Government Affairs Ross Lieberman said, "I'm sure they'll be taking the FCC to court."

This was a notion confirmed by the NCTA in its conference.

Separately, a group of creative trade guilds and lobbying orgs -- including the Motion Picture Association of America, SAG-AFTRA and the Recording Industry Association of America -- jointly announced that they have each, individually filed comments to the FCC, expressing their concerns over the set-top proposal. 

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