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NCTA: Gemstar petition wasting time

Thu, 01/24/2002 - 7:00pm
Anne Kerven

That National Cable& Telecommunications Association — you always have to wonder what they really think.

In a blistering notice, the organization opposed Gemstar TV Guide International's latest petition about the must-carry/Vertical Blanking Interval squabble and accused it, among other things, of wasting time.

The objection, sent to the U.S. Federal Communications Commission, says Gemstar, which just filed a petition for reconsideration on the FCC's Dec. 7 VBI ruling, "has already extinguished an inordinate amount of the Commission's time, as well as the time of interested parties."

Moreover, Gemstar is "arguing for a result that, as the Commission's well-reasoned decision makes clear, has no basis in Section 614 of the Communications Act of 1934 … or in the Commission's rules and decisions implementing that statutory provision."

Gemstar developed Guide Plus+, an electronic program guide built into TVs and VCRs made by its licensees. It sends data for program listing updates through the VBI of the signal of analog over-the-air broadcast stations. The EPG doesn't function without the programming updates.

Time Warner Cable, which wanted to strip out Gemstar's data from the VBI, asked the FCC in a filing to determine if GuidePlus+ material falls under the must-carry rules.

Cable operators are required to retransmit program-related material in the VBI, the FCC says. The question was whether material in the VBI is program-related. The FCC fell back on a case between WGN Continental Broadcasting Co. and United Video Inc. for guidelines to determine the issue.

"Must carry obligations do not require the company to carry material inserted in the (VBI) of over-the-air broadcast stations at the behest of Gemstar International," the FCC said then in a statement Dec. 7, 2001.

According to the FCC, for the VBI information to fall under the program-related category, it must be intended to be seen by the same viewers watching the main program; it must be available during the same interval of time as the main program, and it has to be an integral part of the main program. Gemstar's VBI material did not fit those categories, it said then.

With its most recent petition, "Gemstar seeks for a third time to persuade the Commission that the must-carry provisions of the statute somehow compel cable operators to carry EPG material because it happens to be inserted in the VBI," NCTA says.

Gemstar argued that the FCC incorrectly concluded that Section 629 applies to equipment only and that Guide Plus is not equipment.

NCTA, which characterized Gemstar's reasoning as a "metaphysical belief," countered that Guide Plus+ qualifies as equipment under the section because it will not function unless the consumer has purchased a receiver equipped with the Guide Plus+ module. Section 629 doesn't require cable operators to provide services or equipment they aren't already providing, but does mandate that consumers be able to use competitive equipment to receive cable services.

NCTA called for the FCC to deny the petition.

A Gemstar spokeswoman could not be reached by CEDaily's deadline.

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