ACA set forth its concerns in comments filed April 8 in connection with a Notice of Proposed Rulemaking (NOPR) in which DOE outlined a series of proposals that failed to make meaningful distinctions between the financial capabilities of locally run independent cable systems and cable operators and satellite TV providers that serve millions of customers on a regional and nationwide basis.
ACA explained that the success of DOE's mission to spur the development and deployment of more energy-efficient STBs depends on its ability to leverage the industry's expertise and capabilities but that requiring small cable operators to set up elaborate testing facilities and hire expert engineers to test the energy use of scores of small scale software configurations would not meaningfully contribute to this success.
"It would, however, impose significant costs on the segment of the industry that can least afford them. Doing so would threaten the competitive market, a result that the Energy Policy and Conservation Act (EPCA) expressly seeks to prevent," Polka said.
In particular, ACA said it opposed DOE's apparent proposal to treat every different combination of software that is loaded onto an STB as a unique "model," and thereby deem any party that loads software onto a set-top box to be a "manufacturer." As a result, many small cable operators would be deemed to be "manufacturers" of dozens or even hundreds of device models. The number could be even greater depending upon the interpretation of whether various frequent software updates would render yet another new model each time, exponentially magnifying the testing burden.
"At one time, many small operators deployed STBs with the software provided only by the box's manufacturer, and therefore would not have been implicated by DOE's proposed definitions. However, today the reality in the field is far more complicated. Many small operators increasingly load third-party software and Enhanced TV Binary Interchange Format (EBIF) applications onto STBs to take advantage of new innovative options available in this rapidly changing and increasingly competitive market," Polka said.
ACA identified other concerns with DOE's proposed regulations. The trade group said the NOPR understates the cost of testing for small cable operators and assumes that each operator would need to test only two models. Unfortunately, small cable operators would be required to test a new "model" every time they changed any software on an STB. Under this standard, small operators could have dozens or even hundreds of "models" to test, at a cost far exceeding the estimate provided by the NOPR.
ACA said the NOPR is based on a number of false assumptions about the number of small businesses affected by the rule; the number of tests that each would have to perform; the revenue impact of the testing requirement; and the relative ease of and costs involved in employing an electronics engineer to test STB models for small operators. Many small cable operators do not have the necessary personnel or equipment resources to perform these tests in-house, or package equipment for shipment to a testing facility, let alone to do so each and every time they make a new variation in software.
ACA recommended that DOE could better achieve its goal of spurring the development and deployment of more energy efficient STBs by requiring the actual physical hardware manufacturer of the boxes to perform testing. Doing so would avoid imposing significant costs on an industry sector least able to bear them at a time of rising costs, increasing regulatory burdens and declining video revenues.
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