The FCC should reinstate most of the CableCARD...

the “Second Report & Order pertaining to Section 629,” including rules governing CableCARDs and encoding rules. By vacating a number of technical standards that applied to cable operators along with the encoding rules that were at the center of EchoStar, “the Court created an unhealthy amount of uncertainty in the industry -- uncertainty that harms innovation and competition as well as settled consumer expectations,” said TiVo. To comply with the court’s ruling that the FCC did not have the authority to apply encoding rules governing copy protection to DBS, TiVo’s petition asks the commission to leave the rules that affect DBS out of the rulemaking. Since the court didn’t “make any findings adverse to any of the other regulations” aside from the rules that applied to DBS, “there is nothing in EchoStar to impede the Commission from re-instating the non-controversial standards-reference regulations adopted with the Second R&O, and from re-instating the Encoding Rules, sans the language that included DBS operators in their scope,” TiVo said. Restoring the rules would promote competition and clear up confusion about the state of CableCARD regulation, TiVo said. “Given Section 629’s requirement that the Commission assure the competitive availability of retail navigation devices, it is the Commission’s statutory responsibility to resolve any uncertainty or ambiguity concerning its rules,” TiVo said. The set-top box maker pointed to the Media Bureau’s CableCARD waiver granted to Charter Communications as evidence of a need for more clarity on CableCARD regulation. “The Media Bureau’s Order speculated about, but did not purport to resolve, the status of earlier and later rules in the wake of EchoStar’s rejection of only the Second R&O,” TiVo said. “Charter formulated arguments suggesting that every FCC rule pertaining to CableCARDs and common reliance was now subject to reinterpretation and dismissal,” said TiVo. The Media Bureau didn’t comment. “I have a hard time seeing what choice the FCC has,” said Public Knowledge Senior Staff Attorney John Bergmayer. “They have a statutory obligation to do something about this -- I would expect to see most of the rules come back,” said Bergmayer. CEA also said it supports the proposed rulemaking. “They have the ability to reinstate them, it’s not a heavy lift,” said CEA’s Julie Kearney. The NCTA and American Cable Association -- both of which have opposed CableCARD requirements in the past -- did not comment on TiVo’s petition. “The petition doesn’t indicate any market impediment as a result” of the rules being vacated by EchoStar, said Davis Wright cable attorney Paul Glist, who has represented companies seeking CableCARD waivers. “This shouldn’t be controversial,” said TiVo General Counsel Matt Zinn. “These are the rules we've all lived by for years.”