Only a day after asking over-the-air television broadcasters to justify their existence and why some or all of their spectrum should not be reclaimed by the FCC to be used for wireless broadband (and giving interested parties only until December 21 to not only justify their existence, but also to come up with technical means by which the spectrum could be more efficiently used, business plans for their future use of the spectrum, and a survey of the competing needs for that spectrum – see more detail below), the FCC issued another request for comments, asking how current video devices could be made more accommodating to Internet video.  These comments, also due on December 21, seemingly bring consumer electronics manufacturers and multi-channel video providers into the FCC’s rapidly-expanding evaluation of the video industry and its future.  As the comments filed in connection with these two requests will no doubt lead to proposals to be included in the FCC’s February report to Congress on strategies for broadband deployment, these quickly prepared filings could help determine the future of the video industry for the foreseeable future.

The new proceeding, looking for a "plug and play" model of consumer video devices that can access conventional television delivery systems and the Internet, starts with the statement that Internet video is "tremendously popular" and a prediction that, as it expands, new applications for such video will be found.  The Commission says that it sees Internet video as one way of spurring broadband adoption.  How to best promote the plug and play model for consumer video devices that can access the Internet is the crux of the comments that the FCC seeks.  The Commission first asks whether there are currently video devices that allow televisions to view not only the programming provided by multichannel video providers (e.g. cable and satellite), but also Internet video that may be available through an Internet service provided by that same MVPD, stating that it was not aware of such devices.  Next, the Commission asks what would be necessary to develop such devices, and what rules the Commission could adopt to possibly require capabilities in set top boxes and other devices to provide this universal access to video programming of all sorts.  The third area of inquiry from the Commission asks about standards that could be adopted to make Internet video and video from other sources interact with all other home audio and video equipment, including DVRs, to bring about the "digital living room."  And finally the Commission asks what stands in the way of plug and play devices that will work with all networks by which video is delivered.

The Commission, while clearly having a mandate to foster broadband development, seems to be taking steps that look toward possible intervention in the technological development of the video marketplace – seemingly standing ready to help pick winners and losers through regulatory actions.  The proposals in this proceeding, if the Commission were to follow through with mandates that are mentioned in this Request for Comments, could impose costs on MVPD providers and others to assist in providing access to potentially competing video – video that developments from other companies (both Apple and Microsoft, for instance, having introduced systems over the years to make TV and Internet content available on a television screen) seem to demonstrate that the marketplace is quite capable of providing if there is consumer demand. 

The questions asked in the first of the paired Requests for Comments, the one looking at whether to reclaim the television spectrum, adds to this perception that the Commission is looking to select winners and losers in the video environment.  The questions asked in that proceeding raise so many fundamental issues about over-the-air television in a manner that seems to indicate a preference for other uses of the television spectrum that, by just asking the questions it does, the Commission could scare off vital investment just as the television industry is looking for ways to utilize the digital television spectrum that has just so recently been fully deployed (e.g. though the mobile digital television deployment which is only just beginning).  While we wrote about some of the general questions asked in that proceeding here, there are many complex, specific issues on which the Commission seeks detailed comment in just over two weeks.  These include:

• The factors that the Commission should review in assessing relative spectrum needs
• The impact on the US economy of increased wireless broadband and of any decrease in the amount of spectrum used by television broadcasters.
• The current and future uses of the digital capacity of television stations
• The views of the financial community on mobile TV broadcasting
• Whether over-the-air television could be more efficiently used through more co-location of facilities and though other compression technologies that could allow more services in less spectrum, and the costs of developing and implementing such changes – both to stations and consumers
• Whether better antenna standards or more use of MVPD retransmission could lessen the need for spectrum currently used by TV stations
• What benefits do over-the-air television stations provide in terms of local news, education, emergency information and political coverage
• What market-based solutions could be used to encourage broadcasters to be more efficient with spectrum and to potentially  free some of that spectrum.

Perhaps the most loaded question was one which started with a premise that appeared to contain a conclusion for all of the other questions asked:

Consumers are migrating away from mass-market “appointment” viewing to more fragmented and time-shifted viewing. What impact will this trend have on the television broadcasting industry? What can the Commission do to help broadcasters participate in this evolution?

This question alone seems to conclude that "appointment television" is dead – despite the fact that even on the Internet, appointment television seems to be continuing to play a big role – whether through coverage of a political speech, preliminary games of March Madness, a live U2 concert, or a swimsuit photoshoot.  Even on the Internet, appointment television seems to be alive and well – so a conclusion that its death is imminent seems difficult to reach at this time, and perhaps presumptuous for the Commission to even posit.  Even if one were to conclude that television broadcasters were the buggy whip manufacturers of the 21st century (and, given the continued reliance of advertisers – both political and commercial – and viewers on programming provided by such broadcasters, that seems a difficult conclusion to reach), should the Commission be encouraging or potentially be mandating their demise by pulling spectrum out from under them – when the stations and consumers have just spent billions of dollars to foster the digital transition that was only completed in June – before television broadcasters have even been given the opportunity to prove their ability to operate and function in the digital world?  Particularly in smaller television markets, these very broadcasters may well be the ones who are most likely to bring video programming innovations to their service areas – both in connection with their over-the-air operations and on other digital platforms.  Should the Commission presumptuously label their business model as one that is being replaced?

This Commission, in may ways, has striven to be an open one – seeking public comment on many topics, including broadband innovation and even the broadcast multiple ownership review that is coming next year, encouraging diverse and robust debate, as early in the process as possible.  Yet on these fundamental questions facing the television industry, there seems to be a rush to judgment – asking pointed questions where it is suggested that answers have already been reached, and giving interested parties such a short time frame to answer such fundamental questions that the Commission cannot possibly expect searching, detailed responses.  While we understand the Commission’s need to meet it mandate to report to Congress on broadband deployment by February, must it really engage in this rush to judgment on questions concerning all video operations?  The history of the television digital transition shows the bumps in the government’s handling of a basic change in just one portion of the video industry – and that was part of a 15 year process.  To reform the entire video industry at the speed with which the Commission now seems to be moving can only invite trouble.  We hope that affected parties file comments in response to these two Requests for Comments that fully state their cases by the December 21 deadline in a way that makes the Commission recognize that there need not be government anointed solutions to the major industry development issues now facing the various industries involved.  The evolution of the television industry is a process that needs to be allowed to develop in response to consumer demands – not in response to government mandates.