On June 3, a group of 15 state attorneys general and the consumer advocacy group Consumer Watchdog each filed letters with the Federal Communications Commission (the “FCC”) urging the FCC to incorporate more stringent consumer protection provisions in its proposal to expand access to TV set-top boxes to thirdparty providers.

Earlier this year, on February 18, 2016, the FCC proposed a rule intended to make it easier for companies, other than cable or satellite television providers, to sell set-top boxes that can be used with consumers’ cable and satellite television services.  In its Notice of Proposed Rulemaking, the FCC observed that the consumer protection statutes that govern set-top boxes provided by cable and satellite television providers (known as multichannel video programming distributors, or “MVPDs”) do not apply to set-top boxes provided by third parties.  To address this discrepancy, the FCC proposed having the third-party providers certify to the MVPDs that their devices or software protected consumers’ privacy to the same extent that federal law requires of cable and satellite providers.  Only then would the MVPDs be required to provide television subscription information to the third-party providers.

However, this proposal quickly drew criticism.  In an April 22, 2016 comment letter, the Federal Trade Commission (the “FTC”) expressed concern that the FCC’s proposal did not do enough to protect consumers’ privacy.  Therefore, the FTC recommended that the FCC impose an additional requirement: that the third-party set-top box providers be required to provide short, easy to understand, consumer-facing statements about their promise to comply with the same privacy obligations  that apply to MVPDs.  Those public promises would then be enforceable under the FTC’s Section 5 authority if the third-party set-top box providers violated their obligations under the pledge.

Recently, Consumer Watchdog met with individuals from the FCC to discuss the set-top box plan.  While the group supports the plan to let viewers access their pay-TV programming on third-party devices, it also noted that it opened up an “enormous opportunity for abuse of consumers’ privacy by data collectors.”  For that reason, the group urged the FCC to agree to the FTC’s proposal. 

Finally, a group of 15 state attorneys general have also filed a comment letter urging the FCC to adopt the FTC’s proposal.  In their letter, the attorneys general noted that, in addition to allowing for enforcement by the FTC, requiring consumer-facing statements would enhance enforcement of any potential privacy violations as violations of state unfair, deceptive or abusive acts and practices laws.  The attorneys general also noted that it was “critical” that the FCC’s actions not have preemptive effect on state laws protecting consumer privacy.

Reporter, Ashley Guffey, Atlanta, + 1 404 572 2763, aguffey@kslaw.com.