The Plug and Play Agreement was reached by consumer electronics companies and cable providers on December 19, 2002. According to CEA and CERC, early approval and implementation of the agreementwill promote competition in the cable product marketplace, and will provide a tremendous boost to the digital television (DTV) transition by facilitating HDTV reception in the living rooms ofAmerica’s 70 million cable households.
As explained in the comments, “This proceeding represents a historic opportunity for the FCC to move the DTV and HDTV transitions over the long hill they have faced. It is now up to the Commission whether these enterprises crest the hill and gather speed, or roll back down. The representatives of the consumer electronics industry are united in urging the Commission to act expeditiously to approve and enact the matters presented in this proceeding on the basis of the agreement.”
The comments pointed out that the agreement fulfills the clear mandate of Congress and the FCC to create a retail market for cable compatible DTV products. Congress has repeatedly made its objectives clear, giving the FCC the unambiguous jurisdiction to enact the various regulations, including the “encoding rules” that limit use of copy protection technology, on which the agreement depends. As the comments note, “Each element of the agreement derives directly from a Congressional mandate, and from the steps the Commission has taken since 1992 in order to make the mandate into a reality.”
For example, in Section 624A of the Communications Act, enacted in 1992, Congress directed the FCC to take regulatory steps to ensure compatibility between cable systems and consumer electronics devices. In 1996 Congress enacted Section 629, instructing the FCC to adopt standards-based regulations that assure the competitive availability of cable products from manufacturers and retailers not affiliated with cable providers. FCC approval of the Plug and Play Agreement would fulfill these Congressional directives.
The FCC’s jurisdiction also encompasses the encoding rules included in the agreement. The comments point out that, “In its Declaratory Order of September 2000, the FCC ruled that copy protection may be considered a species of conditional access. The Plug and Play Agreement achieves balanced copy protection outcomes as a subset of conditional access, pursuant to the FCC’s order.”
In approving the Plug and Play Agreement, CERC and CEA urged the FCC to ensure the protection of vital consumer interests as well as HDTV early adopters. Specifically, the comments point out that the ban on “selectable output control” is essential for the protection of American consumers. “CEA and CERC are appreciative that the cable industry has recognized that this practice is not an appropriate species of conditional access.”
The agreement also bans the practice of “downresolution” as applied to programs originating as free-over the air terrestrial broadcasts. While the agreement is silent with respect to downresolution of other content such as Multichannel Video Programming Distributor (MPVD) services, CERC and CEA urged the FCC to find that a complete ban on such downresolution is also in the public interest.
Finally, CERC and CEA noted that the Commission’s jurisdiction in this area extends of all services of all MVPDs under Section 629 of the Communications Act. The comments stress that it would be fundamentally unfair and unacceptable for copy protection outcomes to apply differently to different industries that compete for the same programming.