On September 23, the FCC released a public notice that “Cablevision Systems Corporation (“Cablevision”) has filed a request … for waiver of Section 76.630(a) of the Commission’s rules with respect to its New
York City franchise areas …[which] prohibits a cable operator from encrypting the Basic service tier.”

Cablevision “asserts that grant of the requested waiver ‘will reduce costs, improve customer service, reduce fuel consumption and CO2 emissions and have virtually no negative impact on customers’” and that “Commission precedent supports grant of the requested waiver”.

“Cablevision asserts the Commission has found that the purpose of the rule prohibiting encryption of the Basic tier is to limit the additional cost and inconvenience of the equipment that consumers would need to view encrypted analog programming in an otherwise rate-regulated tier. Cablevision emphasizes that if its waiver is granted, and it transitions to an all-digital system with an encrypted Basic tier, the issue of cost and inconvenience for subscribers would be moot because nearly all of its subscribers will have either a digital set-top box or CableCARD-equipped device to view digital programming, and by extension, encrypted programming”

“Cablevision acknowledges, however, that grant of this waiver will affect subscribers with television sets equipped with digital cable tuners (quadrature amplitude modulation or “QAM” tuners) who subscribe only to broadcast Basic service. Currently, Basic tier subscribers, and some other subscribers who have additional television sets without set top boxes, can rely on the digital cable tuner in their television to receive Basic tier programming without the need to obtain a box. However, if the Basic tier is encrypted, these subscribers would need to buy or rent additional equipment (either a set-top box or a CableCARD)”

I believe that it is a bad idea for the Commission to grant the waiver. First, while Cablevision states that “nearly all of its subscribers will have either a digital set-top box or CableCARD-equipped device”, it would create additional costs and inconvenience to those who do not “have either a digital set-top box or CableCARD-equipped device”. The larger inconvenience is for people who have additional televisions or tuners that do not support CableCARD. As an example, while I have a set top box for the main television in our living room, I often use my Pinnacle PCTV HD Ultimate USB stick to receive non-encrypted digital channels on my computer, which also provides the ability to record these channels for playback at a later time. My USB stick which does not support CableCARD would be rendered virtually useless if Cablevision were granted a similar waiver in Connecticut.

While I recognize that I may be closer to the cutting edge of technology adoption than others, I cannot help but wonder how many other people would be inconvenienced or face additional costs, even if only to get additional CableCards from Cablevision. It is my understanding that Cablevision currently charges an extra $2 per month per CableCard. Beyond that I am concerned that this could inhibit the development and growth of other digital tuners that do not have CableCard capabilities.

If Cablevision were willing to agree, in perpetuity to make all CableCards free, to cover the difference in the purchase cost between nonCableCard enabled devices and similar CableCard enabled devices, and make it convenient to get such devices with such discounts, then such an action might be defensible. However, I cannot see CableVision being willing to make such an agreement, and I’m not sure that it would be wise for them to do so.

It is also worth noting that Microsoft’s FAQ about CableCards states “You'll need a CableCARD if you want to watch encrypted digital and HD channels. If you choose not to use a CableCARD, you can watch and record basic cable TV channels”. I do not know how many people have set up Windows Media Center without a CableCard based on this information, but the information would no longer be correct for people receiving their cable signal from CableVision in New York City if the exception is granted.

Another reason why I am particularly concerned about this is that even though I do not currently live in New York City I do live in another area served by CableVision and their comment about relying on precedent raises a further concern for me. I do not want such a ruling to establish a precedent that could negatively affect CableVision service in other areas including the area where I live.

The public notice states that “Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov”. I am considering filing a comment through this system and I would encourage others to do the same. In addition, if you have additional thoughts on using digital sets, tuners, or USB devices without CableCards, please share them so that that we can all provide more effective comments on the public notice.