[opendtv] Re: Comcast sued for not selling set-top boxes, CableCARDs

  • From: Albert Manfredi <albert.e.manfredi@xxxxxxxxxx>
  • To: <opendtv@xxxxxxxxxxxxx>
  • Date: Sun, 28 Dec 2008 19:05:55 -0500

Cliff Benham wrote:
> In reality, just like the cable and satellite companies
> today, all [the bell companies] wanted was to keep those
> equipment rental fees coming in every month.
Congress giveth, and Congress could take away.
It looks like Congress gave the FCC the authority to make th rules for consumer 
device compatibility with cable systems, in 1992, which the FCC did in 47 CFR 
76.630. So this applied to analog basic tier channels, and they had to be 
When digital cable appeared on the scene, the FCC wrote 47 CFR 76.640, which 
does not specifically discuss a "digital basic tier," and instead it does 
discuss this POD device requirement for DTV sets, to unscramble the digital 
tier signals. Presumably, at the time, the "basic tier" was assumed to be 
At the same time, the broadcast flag issue was still alive, so the NCTA 
petitioned the FCC to allow the scrambling of the digital tier to be used as a 
de facto implementation of a broadcast flag compliant technology (MB Docket 
In this letter, the NCTA petitions the FCC to adjust the old rules of 76.630 
(which were written for analog and no issue with broadcast flag) for a digital 
basic tier ruling which would not read like 76.630.
Since then, as I showed previously, the FCC gives cable systems the option of 
several ways to transmit their basic tier (OTA channels), in analog or in 
digital. And never in any of this does the FCC mandate use of clearQAM, that I 
have found. Even though in principle, now that the broadcast flag was 
determined to be beyond the FCC's charter, the FCC could mandate something 
along those lines.
Enfin bref, while it is easily shown that FOTA stations cannot copy protect or 
scramble content that they transmit free (over the air), in the wording of 17 
USC 1201 and the wording of the Betamax decision, I don't see anywhere that 
such provisions apply to anything transmitted over digital cable. And it's not 
a leap to include DBS in this too.
And then of course, cable companies are allowed to decide when to dismantle 
their analog tier.
Still, Congress could decide to change all of this. Possibly, a 
Democrat-controlled Congress could tell the FCC to reword 76.630, I would 
think, to explicitly mention clearQAM for a digital basic tier.
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