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Media Bureau Grants TiVo's Waiver Request

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Released: September 7, 2011

Federal Communications Commission

DA 11-1516

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
)

TiVo, Inc.
)
MB Docket No. 11-105
)
Request for Waiver of Sections 15.118(b),
)
15.123(b)(1), and 15.123(c) of the Commission's
)
Rules
)
)

MEMORANDUM OPINION AND ORDER

Adopted: September 7, 2011

Released: September 7, 2011

By the Chief, Media Bureau:

I.

INTRODUCTION

1.
In this Order, we grant, to the extent set forth herein, TiVo, Inc.'s ("TiVo" or
"Petitioner") unopposed1 request for waiver of the Federal Communications Commission's
("Commission") requirements that electronics equipment marketed as "digital cable ready" include tuners
that are capable of tuning over-the-air broadcast channels and analog cable channels for its new TiVo
Premiere Elite digital video recorder ("DVR"). This device permits simultaneous viewing and recording
of up to four digital cable channels and has a capacity of up to 300 hours of high definition
programming.2 We conclude that the waiver is in the public interest because it 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. In addition, we condition this waiver on TiVo's
commitment to inform consumers and retailers about the capabilities and limitations of this digital device.

II.

BACKGROUND

2. Congress has twice directed the Commission to adopt regulations to the development of a
retail market for cable-ready devices. As part of the Cable Television Consumer Protection and


1 Nine commenters (Samuel Biller, Glenn Connery, The Consumer Electronics Association ("CEA"), MegaZone,
Nagravision, The National Cable and Telecommunications Association ("NCTA"), Michael D. Scott, David Slade,
and Transparent Video Systems), filed comments in support of TiVo's request.
2 See 47 C.F.R. 15.118(b) ("Cable ready consumer electronics equipment shall be capable of receiving all NTSC
or similar video channels"); 47 C.F.R. 15.123(b)(1) (prohibiting the sale or marketing of electronics devices as
"digital cable ready" or otherwise depicting the device as compatible with digital cable service if it does not tune
NTSC analog channels transmitted in-the-clear); 47 C.F.R. 15.123(c) (requiring electronics devices marketed or
sold as "digital cable ready" or otherwise depicted as compatible with digital cable service to comply with standards
that require an analog tuner).

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Competition Act of 1992, Congress added Section 624A to the Communications Act of 1934, as amended
("Communications Act"),3 and as part of the Telecommunications Act of 1996, Congress added Section
629 to the Communications Act.4 Section 624A directs the Commission to adopt regulations to assure
compatibility between consumer electronics devices and cable systems to make consumers more likely to
purchase, and electronics equipment manufacturers more likely to offer for sale, innovative cable-ready
devices.5 Section 629 requires the Commission to consult with industry standard-setting organizations
and adopt regulations to assure the commercial availability of set-top boxes and other equipment used to
access multichannel video programming services.6
3. In May 1994, pursuant to the directive of Section 624A, the Commission adopted rules to
assure compatibility between consumer electronics devices and cable service.7 As part of those rules, the
Commission adopted a requirement that "cable ready" receivers be able to tune analog cable channels up
to channel 125.8 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.9 This
rule, codified at Section 15.118(b) of our rules, ensures that devices marketed as "cable ready" are able to
tune the overwhelming majority of cable channels transmitted in analog.
4. In October 2003, the Commission adopted rules to implement Section 629, which directs the
Commission to adopt regulations to assure the commercial availability of set-top boxes and other
equipment used to access multichannel video programming services. Among other things, the rules
require devices marketed as "digital cable ready" to meet certain standards to ensure that they are
compatible with cable systems nationwide.10 TiVo seeks waiver of two specific requirements adopted in
the Digital Plug and Play Order. First, the Commission's rules require manufacturers to test "digital
cable ready" devices for compliance with a standard that specifies that the device shall include an analog


3 47 U.S.C. 544a.
4 47 U.S.C. 549(a).
5 47 U.S.C. 544a.
6 47 U.S.C. 549(a).
7 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.
8 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).
9 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."). This requirement
is not related to the "All Channel Receiver Act," 47 U.S.C. 303(s), and this Order does not address issues
associated with Section 303(s) of the Communications Act.
10 Implementation of Section 304 of the Telecommunications Act of 1996: Commercial Availability of Navigation
Devices; Compatibility Between Cable Systems and Consumer Electronics Equipment
, 18 FCC Rcd 20885 (2003)
("Digital Plug and Play Order"). See 47 C.F.R. 15.123(b)(1), 15.123(c).
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RF tuner to access analog cable channels.11 Second, the Commission's rules require digital cable ready
devices to include over-the-air tuners.12 The Commission based this rule on consumer expectations: "In
the analog environment, the public has come to understand that television receivers labeled or marketed
as `cable ready' universally include the capability of receiving over-the-air broadcast service. We believe
it would be inconsistent with consumer expectations and thus affirmatively misleading for digital cable
ready receivers not to include digital over-the-air reception capability."13
5.
On June 7, 2011, TiVo filed a request for waiver of the Commission's tuner requirements
with respect to its TiVo Premiere Elite DVR, pursuant to Section 629(c) of the Communications Act and
Sections 1.3, 76.7, and 76.1207 of the Commission's rules.14 TiVo explained that it "recently developed
the Premiere Elite, which is an all-digital, CableCard-enabled DVR designed specifically for use in all-
digital cable systems."15 Further, TiVo explained that it "is already taking orders for a version of the
Premier Elite from cable operators."16 TiVo states that it can sell the product to cable operators for lease
to subscribers; however, because the Premiere Elite does not have the capability to receive and tune any
analog cable channels or over-the-air signals, Sections 15.118(b), 15.123(b)(1), and 15.123(c) prevent
TiVo from testing and marketing the Premiere Elite as a digital cable ready product for sale at retail.17
TiVo asserts that waiver will serve the public interest in three ways: First, TiVo argues that waiver will
advance Section 629's goal of a competitive retail market for navigation devices.18 Second, TiVo asserts
that waiver will promote consumer adoption of digital cable service.19 Finally, TiVo states that waiver
will benefit consumers by lowering the Premiere Elite's price, reducing its power consumption, reducing
its size, and increasing its storage capacity.20 To counteract the consumer confusion that our rules are
intended to prevent, TiVo has voluntarily committed to labeling, marketing and retailer education
programs.21 The education program will inform customers and retailers that the Premiere Elite can only
tune digital cable signals and explains that this limitation means that consumers cannot use the Premiere
Elite to receive any over-the-air television or analog cable television.


11 See 47 C.F.R. 15.123(c) (referencing UniDirPICSI01030903: "Uni-Directional Receiving Device:
Conformance Checklist: PICS Proforma," September 3, 2003 and MUDCPPICSI04080225, "Uni-Directional
Cable Product Supporting MCard: Multiple Profiles; Conformance Checklist: PICS," February 25, 2008).
12 47 C.F.R. 15.123(b)(1).
13 Digital Plug and Play Order, 18 FCC Rcd at 20901, 34.
14 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 June 7, 2011) ("Waiver Request").
15 Id. at 2.
16 Id. at 2-3. Devices that cable operators deploy directly to their subscribers are not subject to the requirements of
Section 15.118(b), 15.123(b)(1), and 15.123(c), 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.
17 Id. at 3.
18 Id. at 5.
19 Id. at 5-7.
20 Id. at 7-8.
21 Id. at 8-10; 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).
3

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6.
Nine commenters filed in support of TiVo's request. Several consumers encourage the
Commission to grant TiVo's request, asserting that waiver would lower equipment costs and increase
retail set-top box competition.22 Nagravision and Transparent Video Systems also favor the grant of
TiVo's request and argue that the Commission should extend the waiver to all similar products, asserting
that doing so would promote set-top box competition.23 They further contend that in all-digital cable
systems, analog tuners are entirely superfluous and merely add cost, size, complexity, and power
consumption without providing any functionality to consumers.24 NCTA and CEA both support TiVo's
request as well. NCTA's support stems from its assertion that the Commission's "plug and play"
compatibility rules hinder innovation, and that "coordination between service providers and device
manufacturers" is a preferable way to ensure device compatibility.25 CEA, on the other hand, generally
supports rules that promote national standards to achieve device compatibility, but believes that waiver in
this instance will further the market for devices that can access cable services.26 Both NCTA and CEA
emphasize the importance of the Commission's cable ready labeling regime: "The Commission's rules
concerning [digital cable ready] specifications and labeling serve the important function of informing
consumers and protecting their investments in video devices."27 Accordingly, NCTA encourages the
Commission to condition the waiver upon TiVo educating consumers about the limits of the Premiere
Elite's capabilities.28 In reply comments and an ex parte letter, TiVo affirmed its voluntary commitment
to its consumer education campaign, and modified its education materials slightly in response to NCTA's
comments.29

III.

DISCUSSION

7.
We find good cause to grant TiVo's waiver request subject to the conditions described
below.30 As discussed above, the Commission adopted Sections 15.118(b), 15.123(b)(1) and 15.123(c) to
achieve two purposes: (1) to establish standards for compatibility between retail electronics equipment
and cable services, and (2) to prevent consumer confusion. In this regard, we note that TiVo has worked
with the cable industry to ensure that the Premiere Elite will work on all-digital cable systems, which
lessens the adverse impact on compatibility.31 Furthermore, by voluntarily committing to launch a


22 Michael D. Scott Comments at 1; Samuel Biller Comments at 1-2; Glenn Connery Comments at 1; MegaZone
Comments at 1; David Slade Comments at 1.
23 Nagravision Comments at 2; Transparent Video Systems Comments at 6.
24 Nagravision Comments at 3; Transparent Video Systems Comments at 2-4.
25 NCTA Comments at 2.
26 CEA Comments at 1.
27 CEA Comments at 2; see also NCTA Comments at 3 ("TiVo's request warrants some precautions because the
device it seeks to introduce would not have full `plug and play' functionality nor be portable across all cable
systems.").
28 NCTA Comments at 2-3.
29 TiVo Reply at 3-4; 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).
30 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.
31 Waiver Request at 2-3 ("TiVo already is taking orders for a version of the Premiere Elite from cable operators for
deployment later this year to customers served by digital cable systems."); NCTA Comments at 2 ("The TiVo
4

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campaign to educate consumers about the capabilities and limitations of the Premiere Elite,32 TiVo has
offered measures to reduce the possibility of consumer confusion. As we explain more fully below, the
benefits that will result from waiver, when viewed in light of TiVo's education and marketing
commitments, establish that deviation from the general rules will serve the public interest better than strict
adherence to them.33
8.
We conclude that TiVo has demonstrated good cause for a waiver. 34 We find that waiver
of the Commission's rules in this instance should reduce the cost of the Premiere Elite by $80 to $100,
reduce its power consumption, and introduce a new, retail CableCARD device option to consumers.35
Thus, our grant of this waiver should result in tangible consumer benefits. Commenters unanimously
agree with TiVo that the Premier Elite is an "innovative product,"36 and TiVo touts the device's recording
capacity of 300 hours of high definition programming and ability to permit viewing and recording of up
to four channels simultaneously.37 In light of the fact that the TiVo Premiere Elite device is specifically
intended for operation with all-digital cable systems that do not provide any analog video programming
services and is intended for distribution by both cable systems and retailers, this waiver extends only to
that specific set-top box, and not to all service providers and set-top cable terminal device products and
for all providers of services and products. Any device manufacturer that seeks to offer at retail a device
similar to the Premiere Elite must petition for, and receive, a waiver from the Commission based on the
specific facts and circumstances surrounding its proposed retail offering.
9.
In granting this waiver, however, we recognize NCTA's point that although the cable
industry has significantly increased the penetration of its digital services since the Commission adopted
the Digital Plug and Play Order in 2003, many cable systems "continue to carry substantial numbers of
channels only in analog," and "even on systems that simulcast all channels in digital, some customers
may subscribe only to analog service."38 Accordingly, we conclude that as a condition of this waiver
TiVo must engage in the consumer education program which it voluntarily proposed. This condition will





petition was crafted after consultation with the cable industry on how best to bring an innovative product to market
when Commission rules, written for a different time, forbid it.").
32 Specifically, TiVo will inform consumers about the Premiere Elite's inability to receive and tune analog and
digital over-the-air signals and analog cable signals.
33 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.").
34 While we find good cause to grant TiVo's waiver pursuant to Section 1.3 of the Commission's rules, we do not
grant TiVo's request for waiver pursuant to Section 629(c) of the Communications Act of Section 76.1207 of the
Commission's rules. Section 15.118(b) owes its origins to Section 624A of the Communications Act and was not
adopted pursuant to Section 629 of the Communications Act; therefore waiver of Section 15.118(b) pursuant to
Section 629(c) is inappropriate. Furthermore, waiver is not necessary to assist in the introduction or development of
the Premiere Elite. 47 U.S.C. 549(c); Waiver Request at 3 ("TiVo already is taking orders for a version of the
Premiere Elite from cable operators for deployment later this year."); Comcast Corporation's Request for Waiver of
Section 76.1204(a)(1) of the Commission's Rules; Implementation of Section 304 of the Telecommunications Act of
1996: Commercial Availability of Navigation Devices
, 22 FCC Rcd 17113, 17118, 9 (2007), petition for review
denied
, Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008).
35 Waiver Request at 3-4
36 NCTA Comments at 2; CEA Comments at 1.
37 Waiver Request at 3.
38 NCTA Comments at 2-3.
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ensure that the benefits of waiver of the tuner rules, namely, increased retail device competition and
reduced cost and power consumption, outweigh the counteracting burden on consumer expectations.
10.
The rules the Commission adopted in the Analog Plug and Play Order in 1994 reflect the
consumer expectation that cable-ready devices will be able to tune those analog channels. Furthermore,
as the Commission stated in the Digital Plug and Play Order, "the public has come to understand that
television receivers labeled or marketed as `cable ready' universally include the capability of receiving
over-the-air broadcast service."39 To temper these expectations, a comprehensive consumer education
program is 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. TiVo has voluntarily agreed to such an education program. We believe that
the in-store documents, product packaging notices, and retailer training materials that TiVo presented to
Commission staff,40 as modified by TiVo's August 15, 2011 ex parte letter,41 will adequately ensure that
consumers and retail sales staff have sufficient understanding of the capabilities and limitations of the
Premiere Elite.42 Accordingly, this waiver of Sections 15.118(b), 15.123(b)(1) and 15.123(c) of our rules
is expressly conditioned on TiVo's continuing to market the Premiere Elite and educate consumers in a
manner consistent with its filings for as long as it makes the Premiere Elite available at retail.43
11.
We also find good cause to grant TiVo a partial waiver, sua sponte, of Section 15.123(d)
of our rules. Section 15.123(d) requires post-sale material for "digital cable ready" devices to include
language that states that the device is capable of "receiving analog basic . . . programming by direct
connection to a cable system providing such programming."44 In lieu of that notice, and as a condition of
waiver, TiVo shall replace the analog portion of the post-sale notice with the post-sale material that TiVo
has voluntarily agreed to include, which is contained in the Appendix to this Order. Section 15.123(d) of
our rules also requires notification that advanced and interactive digital cable services, such as video-on-
demand, may not be available on retail devices. We do not waive the requirement that TiVo include that
information in post-sale material, and therefore TiVo must include the following notice: "Certain
advanced and interactive digital cable services such as video-on-demand, a cable operator's enhanced


39 Digital Plug and Play Order, 18 FCC Rcd at 20901, 34.
40 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).
41 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).
42 In reaching our conclusions today, we rely on the fact that TiVo still intends to manufacture and sell set-top boxes
that are compatible with analog cable service and over-the-air television. Waiver Request at 9 ("For customers that
continue to receive analog cable service, TiVo's other models will remain available, and TiVo's sales
representatives will be trained to recommend TiVo's dual analog/digital devices to those consumers."). We will
continue to monitor marketplace developments, and we reserve the right to revisit this issue and determine that
waiver is no longer in the public interest if we discover that analog cable service customers and over-the-air viewers
no longer have retail options.
43 Waiver Request at 9; 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) as modified by 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). Per NCTA's request, we clarify that neither this waiver nor the availability of
digital-only devices at retail creates "any requirement or expectation for cable operators who carry analog services
to change their networks, services, or prices to meet the digital-only receiver constraints of this device." NCTA
Comments at 3.
44 47 C.F.R. 15.123(d).
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program guide and data-enhanced television services may require the use of a set-top box. For more
information call your local cable operator."45 This will assure that consumers are not confused about the
capabilities of the Premiere Elite. TiVo's adherence to this post-sale messaging is also a condition of this
waiver.

IV.

ORDERING CLAUSES

12.
Accordingly,

IT IS ORDERED

that, pursuant to Section 1.3 of the Commission's rules,
47 C.F.R. 1.3, the request for waiver filed by TiVo, Inc.,

IS GRANTED

with respect to the TiVo
Premiere Elite set-top box as set forth and conditioned above.
13.

IT IS FURTHER ORDERED

that, pursuant to Section 1.3 of the Commission's rules,
47 C.F.R. 1.3, waiver of Section 15.123(d), 47 C.F.R. 15.123(d) of the Commission's rules

IS
GRANTED IN PART

to TiVo, Inc. with respect to the TiVo Premiere Elite set-top box, as set forth and
conditioned above.
14.

IT IS FURTHER ORDERED

that, pursuant to Section 629(c) of the Communications
Act, 47 U.S.C. 549(c), and Section 76.1207 of the Commission's rules, 47 C.F.R. 76.1207 the request
for waiver filed by TiVo, Inc.,

IS DENIED

.
15.
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


45 Id.
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APPENDIX

TiVo's Consumer Education Labeling and Marketing Documentation
(1) In-Store Product Information: The Premiere Elite "Data Sheet" shall prominently notify potential
customers that it is "Compatible with digital cable and Verizon FiOs" and that customers will need
a "Digital Cable TV or Verizon FiOs connection (does not support satellite, AT&T U-verse or
antenna)." The Data Sheet shall also include the following detailed notice:
CableCARDTM Decoder. A CableCARD decoder is required for your TiVo Premiere Elite DVR
to receive cable programming. The TiVo Premiere Elite is designed for use only with digital
cable systems. It does not receive analog programming, including over-the-air, and will not work
with an over-the-air antenna. Most of the largest cable providers have "digital simulcast," which
means they rebroadcast all their analog channel programming on digital channels as well. This
means that all or most of the programs available on analog channels are also available on digital
channels when a CableCARD is inserted. Therefore, if your provider has "digital simulcast" and
rebroadcasts all of its programming in digital you will not miss any of your cable channel
programming with a TiVo Premiere Elite. If you are unsure whether your cable operator's service
provides all-digital or digital simulcast of all analog programming, please contact your provider.
If you plan to relocate to a new area or change your video service provider, please contact your
new provider to determine whether it offers all-digital or digital simulcast service for all its
analog programming.
(2) The information booklet included with all Premiere Elite units shall include a notification essentially
identical to the notice provided on the in-store "Data Sheet."
(3) Quick Start Guide -- The Premiere Elite packaging shall include an installation guide that includes
the following prominent notice:
The TiVo Premiere Elite is intended for use with digital cable systems only and does not work
with external cable boxes, analog cable, or over-the-air antennas. A CableCARD decoder is
required to receive any cable programming. To receive digital cable channels, and to watch and
record multiple channels at the same time, you need one Multi-Stream CableCARD decoder (M-
Card) from your cable company.
8

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