Over the last few weeks the cable industry has thrown an absolute hissy fit over the FCC’s plan to open up the set top box to some competition. As it stands, the FCC’s plan is to require cable operators to make their content available to a wide variety of third-party hardware. The goal is cheaper, better hardware and service, and to put an end to the cable industry’s $20 billion annual monopoly thanks to cable set top box rental fees.
Obviously the cable industry likes that the average consumer spends $231 annually on such fees, and as such has been attacking the FCC’s plan with an endless series of editorials in papers and websites nationwide claiming the FCC’s plan will hurt privacy, diversity, security, puppies, and unravel the very fabric of the time space continuum.
Now, the cable industry is threatening to sue if it isn’t allowed to keep its existing set top box monopoly in place.
Former FCC boss Michael Powell is now the head of the cable industry’s biggest lobbying organization, the NCTA. And Powell now says the industry is going to sue the FCC if it continues down the path of opening up the set top box market to competition, complaining that “an agency of limited jurisdiction has to act properly within that jurisdiction.”
The problem with Powell’s logic is that the FCC has plenty of authority to act. As telecom attorney Harold Feld notes over at his WetMachine blog, the cable industry has tried three times now to challenge this particularly portion of the FCC’s authority (Section of the 629 Communications Act), and has lost every time:
First, it s important to recognize that the cable folks were already in front of the D.C. Circuit three times on this issue, and lost each time. See General Instrument Corp. v. FCC, 213 F.3d 724 (D.C. Cir. 2000); Charter Communications Corp. v. FCC, 461 F.3d 31 (D.C. Cir. 2006); and Comcast Corp. v. FCC. In each of these cases, the cable industry made similar statutory arguments about the limits of FCC authority in Section 629. On each occasion, the D.C. Cir. which was a lot more pro-business and anti-FCC back then, rejected them.
In other words, the cable industry’s engaged in empty histrionics in order to protect a captive monopoly set top box market. And oddly, with some of the lowest customer service and satisfaction ratings in any industry — cable operators still honestly believe that the public should feel sorry for them just because the FCC wants a healthier cable set top box market.