Media Bureau Granted Tivo's Waiver Request
Federal Communications Commission
Federal Communications Commission
Washington, D.C. 20554In the Matter of
MB Docket No. 11-105
Petition for Waiver of Sections 15.117(b), 15.118(b), )
15.123(b)(1), 15.123(c), and 15.123(d) of the
MEMORANDUM OPINION AND ORDER
Adopted: August 9, 2013
Released: August 9, 2013By the Chief, Media Bureau:
In this Order, we grant TiVo, Inc.'s ("TiVo") unopposed request for waiver of the
Federal Communications Commission's ("Commission") analog tuner requirements to allow TiVo to sell
all digital video recorders ("DVRs"), including ones that receive digital broadcast and cable service, as
well as ones that receive only digital cable service. First, we waive the requirement that all devices that
can receive any over-the-air television broadcast channels must be able to receive all such channels.1
Second, we waive the requirement that electronics equipment marketed as "digital cable ready" include
tuners that are capable of tuning analog cable channels.2 We conclude that the waiver is in the public
interest because it will reduce the cost and power consumption of TiVo DVRs and provide consumers
with a retail set-top box option that can better compete with devices leased by cable operators, thus
enhancing competition in the retail set-top box market. In addition, to avoid possible consumer confusion
1 See 47 C.F.R. 15.117(b) (requiring all television broadcast receivers to "be capable of adequately receiving all
channels allocated by the Commission to the television broadcast service").
2 See 47 C.F.R. 15.118(b) (requiring cable ready equipment to "be capable of receiving all NTSC or similar video
channels on channels 1 through 125"). NTSC refers to the National Television System Committee broadcasting
standard, which is the standard used by cable systems and certain low-power, Class A, and translator over-the-air
stations to transmit analog signals. In its petition, TiVo also seeks waiver of (1) Section 15.123(b)(1), which
requires all unidirectional digital cable products to be capable of tuning NTSC channels transmitted in the clear; (2)
Section 15.123(c), which outlines tests and standards that unidirectional digital cable products must satisfy before
going to market; and (3) Section 15.123(d), which requires manufacturers and importers of unidirectional digital
cable products to inform consumers that the device is "capable of receiving analog basic . . . cable television
programming." TiVo Petition at 1 (citing 47 C.F.R. 15.123(b)(1), 15.123(c), 15.123(d)). As TiVo states in its
petition, the D.C. Circuit recently vacated the Order that adopted Section 15.123. TiVo Petition at 2, n.4 (citing
EchoStar Satellite, L.L.C. v. FCC, 704 F.3d 992 (D.C. Cir 2013)). The court issued the mandate in that case on
March 13, 2013. Because Section 15.123 is thus vacated, we consider that portion of TiVo's request moot.
Federal Communications Commission
DA 13-1740about the devices' capabilities and limitations, we condition this waiver on TiVo's continued commitment
to clearly state on consumer and retail education materials that the devices (i) receive neither analog over-
the-air broadcast channels nor analog cable channels, or (ii) receive no over-the-air broadcast channels, as
The All Channel Receiver Act of 1962 grants the Commission the "authority to require
that apparatus designed to receive television pictures broadcast simultaneously with sound be capable of
adequately receiving all frequencies allocated by the Commission to television broadcasting when such
apparatus is shipped in interstate commerce, or is imported from any foreign country into the United
States, for sale or resale to the public."3 The Commission first exercised this authority in 1962 by
adopting Section 15.70(a) of the Commission's rules.4 The successor to this rule, now codified at Section
15.117(b), states that "TV broadcast receivers shall be capable of adequately receiving all channels
allocated by the Commission to the television broadcast service."5 A "TV broadcast receiver" is defined
as a "device designed to receive television pictures that are broadcast simultaneously with sound on the
television channels authorized under part 73 of this chapter."6 For purposes of this rule, the term "TV
broadcast receivers" includes "devices, such as TV interface devices and set-top devices that are intended
to provide audio-video signals to a video monitor, that incorporate the tuner portion of a TV broadcast
receiver and that are equipped with an antenna or antenna terminals that can be used for off-the-air
reception of TV broadcast signals, as authorized under part 73 of this chapter."7 The purpose of this rule
3 47 U.S.C. 303(s); the All Channel Receiver Act of 1962, Pub. L. No. 87-529, 76 Stat. 150. See also S. Rep.
1526, 87th Cong., 2nd Sess. 1962 reprinted at 1962 U.S.C.C.A.N. 1873, 1875 (discussing "the relative scarcity of
television receivers in the United States which are capable of receiving the signals of UHF stations" (only about
16%), which "prevents effective competition between UHF and VHF stations which operate in the same market").
4 All-Channel Television Broadcast Receivers, 27 Fed. Reg. 11,698, 11,700 (Nov. 28, 1962); 47 C.F.R. 15.70(a)
(1962) (current version at 47 C.F.R. 15.117(b)) ("[a]ll television broadcast receivers manufactured after April 30,
1964, and shipped in interstate commerce or imported from any country into the United States, for sale or resale to
the public, shall be capable of adequately receiving all channels allocated by the Commission to the television
5 See Revision of Part 15 of the Rules regarding the operation of radio frequency devices without an individual
license, 4 FCC Rcd 3493, 3517, 139 (1989) (adopting 47 C.F.R. 15.117(b)). Based on a prior Commission
statement, it is arguable that this rule does not require a digital television receiver to receive analog signals.
Advanced Television Systems And Their Impact Upon The Existing Television Broadcast Service, Fifth Report and
Order, 12 FCC Rcd 12809, 12855-6 (1997) ("We do not believe that our goals would be advanced by mandating that
all digital receivers receive and display NTSC signals and DTV signals, regardless of format, aspect ratio, or
progressive or interlaced scanning, as broadcasters argue. We expect that equipment manufacturers will make
available to consumers digital receivers that receive both NTSC and DTV signals. However, we will not preclude
equipment manufacturers from designing digital receivers that do not receive NTSC signals."). However, on its
face, Section 47 C.F.R. 15.117(b) requires a television broadcast receiver to be able to receive "all channels
allocated by the Commission to the television broadcast service." 47 C.F.R. 15.117(b); see also Office of
Engineering and Technology Laboratory Division Knowledge Database (available at
https://apps.fcc.gov/oetcf/kdb/forms/FTSSearchResultPage.cfm?switch=P&id=42863), Publication Number 218634
(rel. Dec. 17, 2009) (confirming Section 15.117(b)'s dual ATSC/NTSC tuner requirement). Thus, given the
counter-argument that the rule does require digital television receivers to receive analog signals, we proceed in this
Order as if a waiver were required.
6 47 C.F.R. 15.3(w).
7 47 C.F.R. 15.117(a).
Federal Communications Commission
DA 13-1740was to ensure that television broadcast receivers receive all television broadcast channels irrespective of
the channel's place in the broadcast spectrum.8
Section 624A directs the Commission to adopt regulations to assure compatibility
between consumer electronics devices and cable systems in order to make electronics equipment
manufacturers more likely to offer innovative cable-ready devices for sale, and consumers more likely to
purchase them.9 In May 1994, pursuant to the directive of Section 624A, the Commission adopted rules
to encourage compatibility between consumer electronics devices and cable service.10 As part of those
rules, the Commission adopted a requirement that "cable ready" receivers be able to tune analog cable
channels up to channel 125.11 The Commission explained that this requirement was practical and
inexpensive, as cable channel 125 corresponded with the highest UHF broadcast channel that TVs are
required to tune, and that analog compatibility "will minimize the need to use set-top converters for
tuning purposes."12 This rule, codified at Section 15.118(b) of the Commission's rules, ensures that
devices marketed as "cable ready" for sale at retail are able to tune the overwhelming majority of cable
channels transmitted in analog.13
On September 7, 2011, the Media Bureau granted TiVo a waiver of Section 15.118(b) for
8 All-Channel Television Broadcast Receivers, 27 Fed. Reg. 11,698 (Nov. 28, 1962). When the Commission
defined a TV broadcast receiver to include "TV interface devices and set-top devices that are intended to provide
audio-video signals to a video monitor," it was focused on whether those devices should include digital broadcast
receivers because of the impending DTV transition, rather than whether devices should include analog broadcast
receivers. See Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, 17
FCC Rcd 15978, 15995-15999, 39-46 (2002) ("Consistent with the intent of Congress that we not use our
authority under the ACRA to set broad standards for television receivers, we believe that the rules implementing the
DTV tuner requirements should avoid imposing new performance standards on DTV except as necessary to ensure
that receivers can adequately tune DTV signals on all of the television channels."). This context informs our
analysis of the public interest benefits below.
9 47 U.S.C. 544a.
10 Implementation of Section 17 of the Cable Television Consumer Protection and Competition Act of 1992
Compatibility between Cable Systems and Consumer Electronics Equipment, 9 FCC Rcd 1981 (1994) ("Analog
Plug and Play Order"). The term "plug and play" refers to a device's ability to plug into a cable system and receive
cable programming without a cable-operator provided set-top box.
11 Id. at 1995-7, 78-90. ("[W]e will require `cable ready' TV receivers and VCRs to tune to cable channels
specified by the EIA IS132 standard up to a minimum frequency range of 806 MHz."). 806MHz corresponds to
channel 125 on cable systems under the EIA IS-132 standard. See Electronic Industry Association's "Standard
Cable Television Channel Identification Plan, IS132, May 1994" (EIA IS132).
12 Analog Plug and Play Order, 9 FCC Rcd at 1996, 89 ("Inasmuch as TV receivers normally incorporate a single
tuner for both cable and broadcast channels and the appropriate upper range for cable is essentially the same as the
existing broadcast tuning requirement, we believe it would be appropriate to adopt the minimum tuning range for
broadcast channels as the upper cable channel tuning requirement for `cable ready' equipment.").
13 This rule does not apply to boxes that cable operators lease to their subscribers. The Commission adopted the rule
pursuant to Section 624A, which was enacted to ensure that cable signal theft protection techniques do not interfere
with the advanced functions of retail television equipment or inhibit future innovations applicable to retail devices.
47 U.S.C. 544a; Analog Plug and Play Order, 9 FCC Rcd at 1981-1984, 1-16. As the Bureau has stated,
"[d]evices that cable operators deploy directly to their subscribers are not subject to the requirement of Section
15.118(b) . . . as cable operators are familiar with the specific technical requirements for compatibility within each
of their systems and subscribers do not expect those devices to receive over-the-air broadcast service." TiVo, Inc.,
26 FCC Rcd 12743, 12745, n.16 (MB 2011).
Federal Communications Commission
DA 13-1740its Premiere Elite product line, allowing it to market and sell Premiere Elite DVRs that have only digital
cable tuners.14 The Bureau concluded that waiver "will reduce the Premiere Elite's cost and power
consumption and provide consumers a new retail set-top box option that will compete with devices leased
by cable operators."15 The Bureau conditioned the waiver "on TiVo's commitment to inform consumers
and retailers about the capabilities and limitations of this digital device,"16 which the Bureau concluded
was necessary "to ensure that consumers are not misled and that only consumers who subscribe to all-
digital cable service, or who have adequate knowledge and notice of the device's inherent limitations,
purchase the Premiere Elite."17
On February 4, 2013, TiVo filed a request for waiver of the Commission's tuner
requirements with respect to all of its products to allow it to sell DVRs that receive digital over-the-air
signals and digital cable signals, as well as DVRs that can receive only digital cable service, such as the
Premiere Elite.18 To support its request, TiVo argues that "vestigial analog tuners . . . increase costs and
power consumption without providing any useful functionality for consumers."19 TiVo emphasizes that
full-power broadcasters transmit only in digital and that the Commission set a deadline of September 1,
2015 for all other television broadcasters to cease analog transmissions.20 It states that including analog
tuners "increases the retail price of each device by between $100 and $150 depending on the model."21
And it argues that the rule puts TiVo devices at a competitive disadvantage compared to set-top boxes
leased by multichannel video programming distributors, because the Commission's rules do not require
leased set-top boxes to include analog tuners.22 TiVo also argues that waiver will help fulfill the
Commission's policy of promoting compatibility between devices and cable service because TiVos are
compatible with digital cable service.23 Moreover, to assist in preventing consumer confusion, TiVo
commits to continue consumer education efforts to ensure that consumers are clear about the features and
limitations of its devices.24 On March 18, 2013, the Media Bureau released a Public Notice seeking
14 TiVo, Inc., 26 FCC Rcd 12743 (MB 2011). The Premiere Elite is now marketed as Premiere XL4. See Letter
from Gary S. Lutzker, Counsel to TiVo, Inc., to Marlene H. Dortch, Secretary, Federal Communications
Commission, MB Docket No. 11-105 (April 23, 2012).
15 TiVo, Inc., 26 FCC Rcd 12743, 1 (MB 2011).
17 Id. at 12748, 10.
18 TiVo Inc.'s Petition for Waiver of Section 15.118(b), 15.123(b)(1), and 15.123(c) of the Commission's Rules, MB
Docket No. 11-105 (filed Feb. 4, 2013) ("Waiver Request"). TiVo made its request pursuant to Sections 1.3 and
76.7 of the Commission's rules. Because Section 76.7 provides for waiver of "any provision of this part 76," but
does not cover other rule sections, such as part 15 rules, we consider TiVo's petition pursuant to Section 1.3 of the
Commission's rules, which provides authority to waive any of the Commission's rules. 47 C.F.R. 1.3, 76.7.
19 Waiver Request at 1.
20 Id. at 3-5.
21 Id. at 7.
22 Id. at 4, 8-9.
23 Id. at 11-13.
24 The consumer-education program includes labeling, marketing, and retailer education. With respect to the
products for which TiVo has already received a waiver, TiVo informs customers and retailers that the devices can
tune only digital signals and explains that this limitation means that consumers cannot use TiVo devices to receive
any analog over-the-air television or analog cable television signals, as appropriate. See TiVo, Inc., 26 FCC Rcd
Federal Communications Commission
DA 13-1740comment on TiVo's request for waiver. No parties opposed TiVo's request.25
We find good cause to grant TiVo's request for waiver subject to TiVo's continued
commitment to consumer education about the capabilities and limitations of TiVo's devices.26 Waiving
the analog tuner requirements will have a de minimis effect on consumers because the television sets to
which TiVo's products connect are required under Commission rules to have analog tuners27 that TiVo
customers can use to receive any analog broadcast or cable channels that they wish to receive.28
Moreover, waiver of the Commission's rules in this instance should provide TiVo's devices regulatory
parity with MVPD-leased set-top boxes with which they compete,29 reduce power consumption, and
further the Congressional goal of assuring a retail market for devices that can access cable programming
because this waiver will allow TiVo to offer a less expensive, digital cable-compatible DVR.
Furthermore, the Commission adopted these rules before the invention of the DVR.30 The record reflects
that an all-digital DVR is likely to appeal to consumers who would otherwise lease set-top boxes from
their cable operators.31 For these reasons, we grant TiVo's request for waiver.
We find that TiVo presents unique, specific benefits to support its waiver request. As
noted above, the Commission's rules do not require that the all-digital set-top boxes that cable operators
lease to their subscribers include analog tuners, and therefore TiVo is at a competitive disadvantage
against its main competitors.32 As TiVo explains in its waiver request, including "analog functionality
12743, 12745, 12748. 5, 11 (MB 2011). TiVo will undertake these same efforts with respect to the products at
issue in the instant waiver proceeding.
25 The only response to the Public Notice was a filing entitled "Reply Comments" that TiVo filed on April 18, 2013,
to reiterate their arguments and to highlight that no parties filed in opposition to its request.
26 Section 1.3 of the Commission's rules states that "[t]he provisions of this chapter may be suspended, revoked,
amended, or waived for good cause shown, in whole or in part, at any time by the Commission, subject to the
provisions of the Administrative Procedure Act and the provisions of this chapter. Any provision of the rules may
be waived by the Commission on its own motion or on petition if good cause therefor is shown." 47 C.F.R. 1.3.
27 47 C.F.R. 15.3(w); 15.117(a), (b).
28 Waiver Request at iii, 12-13. TiVo states in its Waiver Request that it tracked consumer response to the previous
waiver it received, and only 0.2 % of subscribers commented to TiVo about the absence of analog tuning ability, and
only 0.05% of customers cancelled their subscriptions as a result. Waiver Request at ii.
29 Most other devices with digital tuners, like television sets, do not compete directly with cable set-top boxes
because their main function is not receipt of cable service. TiVo DVRs, on the other hand, compete directly with
"all-digital DVRs without analog tuning capability." Waiver Request at ii.
30 As discussed supra, 2, the Commission adopted Section 15.70(a), the predecessor to 15.117(b), in 1962 (and
moved this provision to its current section in the rules in 1989) and adopted 15.118(b) in 1994; the DVR was not
introduced until the late 1990s. See John Markoff, Netscape Pioneer to Invest in Smart VCR, N.Y. TIMES, Nov. 9,
1998, available at http://www.nytimes.com/1998/11/09/business/netscape-pioneer-to-invest-in-smart-
31 Id. at 3-4; 47 U.S.C. 549. We note that TiVo reports that only 0.05% of customers cancelled their subscriptions
as a result of the lack of analog functionality, and that a waiver will reduce the cost of its devices by up to $150.
Waiver Request at ii. On balance, we believe that the benefit of the cost savings outweighs the burden imposed on a
small number of consumers, particularly given the other options those consumers have to receive analog signals.
32 Waiver Request at 2-4.
Federal Communications Commission
DA 13-1740increases the retail price of each device by between $100 and $150 depending on the model."33 In
addition, TiVo's main supplier of analog tuning components is phasing out its production of analog
tuners, which demonstrates that the market for analog tuners is declining.34 Finally, these all-digital
devices will be more energy efficient, and the lower price may prove more enticing to consumers.
Accordingly, the availability of such devices could encourage consumers to transition to this more
efficient all-digital technology.35 Moreover, the benefits that will result from waiver establish that
deviation from the general rules will serve the public interest better than strict adherence to them.36 When
viewed in light of TiVo's education and marketing commitments that we discuss below, we conclude that
these tangible consumer benefits will be realized with de minimis burden to consumers.
As discussed above, the Commission adopted Section 15.117(b) to ensure that television
broadcast receivers are "capable of adequately receiving all channels allocated by the Commission to the
television broadcast service."37 All full-power television is now broadcast in digital and the Commission
has set a deadline of September 1, 2015 for all other television broadcasters to cease analog
transmissions.38 Therefore, the overwhelming majority of broadcast viewers currently view only digital
broadcast signals, and after the low-power digital transition, broadcast viewers will receive only digital
broadcast signals. We find it significant that there was no opposition to the waiver by low-power
broadcasters, the only group of television broadcasters still transmitting analog signals which arguably
could be impacted by the grant of this waiver. Nonetheless, we have carefully considered the potential
impact on the remaining NTSC Class A and LPTV licensees and their viewers. We find that although
TiVo's DVRs are "television broadcast receivers" that are subject to the rule, they are unusual because a
consumer generally must connect a TiVo DVR to a television set to view the programming that the TiVo
receives and records. Therefore, as TiVo correctly points out, those viewers that currently view low
power signals will not be left stranded by the grant of TiVo's requested waiver because people "who have
not yet made the transition to digital may still rely on the analog tuning functionality required to be
included in the television sets they already own" to view analog low-power broadcast stations and analog
cable channels.39 Accordingly, we believe that this waiver will cause minimal inconvenience and
disruption to consumers.40
33 Id. at 7.
34 Id. at 4.
35 Id. at 1, 11-13. See Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's
Rules, 27 FCC Rcd 10217, 10229, 24 (explaining that each channel "carried in analog occupies 6 MHz of
bandwidth that the cable operator could otherwise use for 10-12 standard definition (`SD') digital streams, 2-3 HD
video streams, or significant broadband capacity").
36 Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) ("[W]aiver is appropriate only if
special circumstances warrant a deviation from the general rule and such deviation will serve the public interest.").
37 47 C.F.R. 15.117(b).
38 47 C.F.R. 74.731(l). Notably, we received no comments from analog broadcasters in response to TiVo's
39 Waiver Request at iii. See also supra note 8 (noting that the Commission's concern in applying the tuner mandate
to a broad class of television broadcast receivers was focused on the impending DTV transition and receipt of digital
broadcast channels rather than receipt of analog broadcast channels).
40 We recognize that a consumer will need to select a different input on his or her television set to change from the
TiVo input to the antenna input. Because this can be performed with the click of a single button on the TiVo
remote, we believe that the inconvenience and disruption to consumers will be minimal. See What do the buttons on
Federal Communications Commission
As discussed above, the Commission adopted Section 15.118(b) to promote compatibility
between retail electronics equipment and cable services. Although the cable industry has increased the
penetration of digital service significantly over the past decade, some cable systems continue to carry
channels solely in analog and some consumers continue to rely on analog cable service. As mentioned
above, TiVo DVRs are connected to television sets, which are required to include analog tuners, and we
expect this waiver to cause minimal inconvenience and disruption to consumers.41 Nevertheless, we
recognize that there remains a small subset of consumers that will need to understand the limits of the
TiVo DVR.42 Therefore, we conclude that it is important to condition this waiver on TiVo's continued
consumer education campaign, just as we did in granting TiVo a waiver of the analog tuner requirements
in 2011.43 This condition requires TiVo to (i) provide retailers with an in-store product information data
sheet and product-specific training, (ii) market primarily to consumers who receive the services that the
TiVo can access, (iii) develop clear and easily understood point-of-sale disclosures that inform consumers
that the product may not work if they move or change service providers, and (iv) offer a program
allowing free 30 day return or exchange if the customer purchased the device with the mistaken belief that
it receives analog services. 44 TiVo has demonstrated that these consumer disclosures and point-of-sale
documentation have substantially minimized consumer confusion about the services that its devices
receive.45 Given TiVo's success with its past consumer-education efforts, its commitment to continue its
consumer education efforts pursuant to the condition adopted here, and the pro-consumer benefits of the
availability of these products, we believe that there is good cause to grant TiVo's waiver request.
IT IS ORDEREDthat, pursuant to Section 1.3 of the Commission's rules,
47 C.F.R. 1.3, the request for waiver of Sections 15.117(b) and 15.118(b) of the Commission's rules, 47
C.F.R. 15.117(b) & 15.118(b), filed by TiVo, Inc.,
IS GRANTEDsubject to the conditions described
IT IS FURTHER ORDEREDthat the request for waiver of Sections 15.123(b)(1),
15.123(c), and 15.123(d) of the Commission's rules, 47 C.F.R. 15.123(b)(1), 15.123(c) & 15.123(d), is
DISMISSED AS MOOT.
the TiVo Premiere remote do?, TIVO.COM, http://support.tivo.com/app/answers/detail/a_id/1851 (last visited July
25, 2013) ("TV Input changes the input source on your TV. Use this button to select the input the TiVo box is
connected to or to switch to other equipment like a VCR or DVD player.").
41 Supra, 8, n.38.
42 Toni Lenoir, SNL Kagan Q4'12 Top MSO Table, MULTICHANNEL MARKET TRENDS (SNL Kagan, Charlottesville,
VA), March 12, 2013, available at http://www.snl.com/interactivex/article.aspx?ID=17175069 ("The migration
toward digital continues with our group of 60 operators averaging a digital penetration of basic subs of 84.3%.").
43 TiVo, Inc., 26 FCC Rcd 12743, 12747-8, 9 (MB 2011).
44 See TiVo, Inc., 26 FCC Rcd 12743, 12745, 5 (MB 2011) (citing Letter from Gary S. Lutzker, Counsel, TiVo,
Inc. to Marlene H. Dortch, Secretary, Federal Communications Commission, MB Docket No. 11-105 (filed August
10, 2011); Letter from Gary S. Lutzker, Counsel, TiVo, Inc. to Marlene H. Dortch, Secretary, Federal
Communications Commission, MB Docket No. 11-105 (filed August 15, 2011)).
45 Waiver Request at 6, 11-13.
Federal Communications Commission
This action is taken pursuant to authority delegated by Section 0.283 of the
Commission's rules, 47 C.F.R. 0.283.
FEDERAL COMMUNICATIONS COMMISSION
William T. Lake
Chief, Media Bureau
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