Multiple sources indicate the FCC is on path to include in its final proposed AllVid set-top box order a de facto FCC office of copyright licensing to try and politically paper over obvious policy and enforcement gaps in FCC authority.
It is further evidence that the “Unlock the Box” proponents pushing AllVid are really bent on “unlocking the copyrights, licenses, and contracts” that collectively protect $200b worth of annual video programming business, not the purported $20b set-top box business.
That’s because AllVid proponents continue to demand their initial outrageous and unlawful claim that the FCC should force the pay TV and video programmer industries to give Big Internet companies their $200b of video programming flows for free -- because the Internet wants information to be free.
The FCC’s big legitimacy problem here is that the FCC is not operating in a legal area where they can argue they are due broad court deference, because in this instance the law is very clear.
The FCC does not have the authority to force property owners to give away their copyrighted property for free or to forfeit their legal licensing or contract rights.
And the FCC shows no interest in asking Congress for the authority it does not have, as it should, because the FCC has proved so adept at operating as a de facto Federal Communications Congress where three unelected FCC commissioner votes create new law -- until a court proves otherwise.
Consider that the law undergirding the FCC’s proposed rule, section 629, Commercial Availability of Navigation Devices, requires the “competitive availability of navigation devices” by adopting “regulations to assure commercial availability… of converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel programming.” [Bold added.]
The plain reading of the text requires that “devices” (equipment/hardware) be competitively available, it does not require that all pay TV video programming content be given away for free to competitors without regard to copyrights, licenses and contracts.
And if that plain reading of the law is not enough, the plain reading also plainly prohibits what the FCC is proposing to do.
Consider: “The Commission shall not prescribe regulations… which would jeopardize security of multichannel video programming and other services offered over multichannel video programming systems, or impede the legal rights of a provider of such services to prevent theft of service.” [Bold added]
Consider again: How can the FCC imagine that this provision of law somehow authorizes some new FCC authority to create an FCC copyright licensing entity when the plain reading of the law here continues to be so definitive: “Nothing in this section shall be construed as expanding or limiting any authority that the Commission may have under law in effect before February 8, 1996.”
If you look further at the Telecom Act of 1996 for Congress’ intent towards the FCC and copyright, look no further than Section 230 which is the primary Internet related section of that law, and where the plain reading of the text is clear: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”
In addition, the definitive U.S. authority on copyrights, The U.S. Register of Copyrights, wrote four members of Congress on August 2nd about the FCC’s Set-Top Box proceeding and clearly stated:
“The Copyright Office is therefore hopeful that the FCC will refine its approach as necessary to avoid conflicts with copyright law and authors interests under that law. As a threshold matter, it seems critical that any revised proposal respect the authority of creators to manage the exploitation of their copyrighted works through private licensing arrangements, because regulatory actions that undermine such arrangements would be inconsistent with the rights granted under the Copyright Act, and to some degree, as discussed below, the authority of Congress to decide whether and when limitations on these rights should apply.” [Bold added.]
Conclusion:
If the FCC ignores the plain reading of multiple laws in order to manufacture the perception of FCC enforcement authority over copyright licensing and contracts, why would anyone trust the FCC to respect the authority of creators or Congress in this matter, or the sanctity of copyright licensing contracts and private negotiations, when potentially overseeing copyright licenses?
Any attempt by the FCC to create an in-house entity to oversee and adjudicate video programming copyright licensing, appears to be a clear ruse to try and create the perception of legitimacy when none exists in this case.
This situation appears very different legally; the FCC does not enjoy reclassification authority or Chevron Deference on this matter like it currently has on Title II matters.
Thus on AllVid and copyright licensing the FCC is skating on very thin ice.
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Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.
