Europe sneers at their technology.
US’s DTV transition passed them by.
BBC’s intelligentsia never noticed them.
No consumer electronics industry to match Asia;
neighbors don’t speak their language.

So how did Brazil become a world leader in digital TV?

And why the tip of the hat to Brazil DTV middleware leader TQTVD, to whom I am currently consulting?

Last week, the international press group Reuters broke the story that “Argentina adopts  Japanese digital TV standard“, but the Buenos Aires Herald got the local angle right: “Argentina adopts Brazil’s digital TV standard” — illustrated no less with a photo captioned “Luiz Inácio Lula da Silva and Cristina Fernández de Kirchner kiss following the signing formality on adoption of a new TV standard”.

Agentina adopts Brazil ISDB

The ceremony also closed a decade’s long good-bye to the US ATSC Forum’s efforts to promote the erstwhile US digital TV standard in Argentina, South America’s 2nd largest economy, as a lynchpin to an international adoption campaign, (note to US FCCsell free TV to US first, straighten out the DTV patent mess, and connect the dot from TV to broadband).

“Que País é Esse?” (What is this country after all?) is the sui generis puzzle that BRIC watchers grapple with when this techno-politico-economic chameleon of contradictions fails to fit facile notions more easily papered from afar onto the other BRICers Russia, India, and China.  Aligned yet non-aligned, democratic with a unique heritage of monarchy, an independent cultural stew yet not a melting pot.  Moderate leadership begets confusing headlines.

dso2-threetransitionsAmong BRIC DTV strategies, Brazil so far has dodged the DTV interoperability mess sold to India by foreign technology providers with a penny-wise-pound-foolish agenda, more carefully charted its own technological contributions onto the world stage than China’s AVS group, and partnered more effectively with Japan than Russia did with France forty years ago in validating France’s SECAM TV standards gambit.

Indeed, on some fronts Brazil is tracking to the UK, the world DTV thought leader and itself a crucible of DTV contradictions.  Brazil’s interactive middleware, Ginga, is a step in the right direction ahead of UK’s MHEG standard, and BBC’s culture-for-everyman could learn a thing or two from TV Globo and other Brazilian broadcasters (long waits worth it to download English language teasers here to feel the universal appeal of “India: A Love Story” or “Seven Sins”).indiaalovestory

The national digital TV industry group, SBTVD Forum, has a similar profile to the UK’s Digital Terrestial Group.  Even bringing parallel howls of protest from pay TV operators waking up to the prospect that free-to-view TV may not die in the digital TV transition after all.

What’s next?  No need to add to broadcasting’s global mantra — coming soon to a broadband TV near you — stay tuned!

References

http://www.nextvlatam.com
http://www.teletime.com.br
http://www.telaviva.com.br

I have filed comments in the UK Project Canvas public consultation.  To catch up on the UK context with global implications, watch James Murdock’s mesmerizing anti-BBC screed, and say…

“This is the BBC.”

Perhaps no other single phrase has broadcast more meaning to more people in the great call to communicate that has gripped our species and planet in the last two centuries and fed waves of techno-political-industrial revolutions from telegraphs to telephones, radio to TV.

And now, working title “Project Canvas”, the BBC’s proposal for a broadcaster-led, free-to-view IPTV service.  This is not  Telco TV, that cable-imitating subscription TV.

Project Canvas is the Internet TV every consumer wants (just hook the Net to my TV and let me watch for free) and (nearly) every incumbent dreads.

But the BBC-led Freeview is coming off a back-from-the-dead UK success, putting Free-To-View broadcasting back on the business-model map.  If anyone has earned the right to think different about IPTV, it is the BBC.

So little wonder trust is the watchword of the moment.

  • Absence of Trust“, Jame Murdock is shouting.
  • Potential of Trust“, UK trust-busting regulators are whispering after killing the precurser Project Kangaro.
  • And “BBC Trust“, the BBC’s watchdog-cum-champion who is running the Project Canvas public consultation.

In the 1981 MacTaggart Lecture, long before the World Wide Web as we know it today, and 28 years before James Murdock reprised his father’s 1989 role on the Edinburgh International Television Festival stage, Peter Jay painted the high-stakes vision of today’s Project Canvas:

“Quite simply we are within less than two decades technologically of a world in which there will be no technically based grounds for government interference in electronic publishing. To put it technically, ‘spectrum scarcity’ is going to disappear. In simple terms this means that there will be as many channels as there are viewers. At that moment all the acrimonious and difficult debate about how many channels there should be, who should control them, have access to them and what should be shown on them can disappear. But it will only disappear if we all work, indeed fight, extremely hard.”

So why shouldn’t Project Canvas also be built on royalty-free standards, advancing rather than opposing the thrust of the Open Internet and World Wide Web that has enabled the Project Canvas opportunity in the first place?

Is the BBC slipping unthinkingly into a common parlance of the day – seduced by the cynical allure of a semi-open “standards-based open environment” — open enough to help me, closed enough to hurt my competitors, with vendor complicity bought by the potential competitive advantage of conveniently under-disclosed patent royalties or other control points?

This is an under-addressed question that the BBC Executive, BBC Trust and proposed joint venture have skirted so far in this consultation, and should be fully addressed before proceeding. A Free-To-View TV Internet is both a TV and a network stewardship.

CONTENTS

EXECUTIVE SUMMARY
DISCUSSION
I. TO DATE THE PROJECT CANVAS CONSULTATION HAS NOT ADEQUATELY CONSIDERED KEY IPR BEST PRACTICES
A. The Core Principle of “Standards-Based Open Environment” is Ill-Defined and Problematic
B. The Needs of and Responsibilities to the Future of the Open Internet Are Not Sufficiently Considered
II. THE LATEST BBC RESPONSE RAISES IPR PROCESS CONCERNS
A. Proposed Framework Compounds Core Problems
B. Preferred Partner DTG Does Not Adequately Address IPR Process
III. PROJECT CANVAS SHOULD ADOPT AN IPR PROCESS BASED ON FACILITATION, EX ANTE, & PREFERENCE FOR ROYALTY FREE
A. Facilitation
B. Ex Ante
C. Preference for Royalty-Free
CONCLUSION

“RAND” — Reasonable and Non-Discriminatory — is a term often used in standards contexts to describe or set expectations of fairness in patent licensing related to standards.

But what does the term “RAND” really mean?  As one well-known commentary on standard-setting, patents, and hold-up states:  “few SSOs [standard-setting organizations] define the term ‘reasonable and nondiscriminatory’ or have mechanisms to resolve disputes about its interpretation”.

The American Bar Association, Section of Science & Technology Law, has filed a comment to the US FCC about the CUT FATT petition on patent overreaching in the US DTV system, acknowledging that:

“international royalty rates for comparable patents and standards may be a useful factor to consider in determining whether U.S. royalty rates are RAND.”

As excerpted below, the Section makes this comment with appropriate qualifications and call to recognition of the complexities of the issues (“there are many other important factors”), and acknowledges that typical RAND analysis is directed at voluntary standards rather than standards mandated by a regulatory authority.

But the Section comments go on to opine that:

“With respect to the particular factor proposed by CUT FATT (i.e.. patent pools for DVB-T and ISDB), we believe that any consideration of “comparables” should be limited to licenses of comparable patents, both in scope and quantity, for implementation of the same standard (i.e., the ATSC DTV standard, in this case).”

The comments further assume that “[c]omparable patents are likely limited to foreign counterparts of the US patents in question.”

Surely, the Section is not suggesting that the only relevant factor to consider should be limited to whether the ATSC standard adopted in the US is offered at a discount in international markets, perhaps to meet price competition from other standards like DVB-T, ISDB, or others, and then only to a comparison of the “US” ATSC royalty price to the “international” ATSC royalty price?  All things being equal, would that be “reasonable”, or just “discriminatory”?

References

Selected excerpts from filing by American Bar Association (“ABA”), Section of Science & Technology Law in CUT FATT proceeding (emphasis added):

“These views are being presented on behalf of the Section only and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and should not be construed as representing the position of the Association.

Section takes no position on whether or not the Commission should assume any role as requested by the Petition or modify any policies regarding DTV patent licensing but rather comments here on the complex and factual considerations that would be implicated by CUT FATT’s request that the  Commission.

One of the issues before the Commission – RAND royalties in the context of a standard mandated by a regulatory authority — has not been widely discussed or analyzed in the literature, which has traditionally focused the RAND analysis on voluntary standards. While the ABA Manual “is not directed to standards whose policies are prescribed by governments …the information may be useful in assessing the terms associated with such activities.”

Depending on the circumstances, international royalty rates for comparable patents [7] and standards may be a useful factor to consider in determining whether U.S. royalty rates are RAND. We respectfully submit that there are many other important factors that the Commission should consider in connection with its review of the Petition.

Specifically, CUT FATT suggests that “international comparable” royalty rates should be treated as “benchmarks” [8] when  assessing the reasonableness of a RAND licensing commitment.  With respect to the particular factor proposed by CUT FATT (i.e.. patent pools for DVB-T and ISDB), we believe that any consideration of “comparables” should be limited to licenses of comparable patents, both in scope and quantity, for implementation of the same standard (i.e., the ATSC DTV standard, in this case). To the extent that such comparables exist, we believe they should be one of many factors considered in evaluating the reasonableness of a particular royalty rate.

[7] Comparable patents are likely limited to foreign counterparts of the US patents in question.

[8] We do not believe that a “benchmark” is appropriate in this context, as it may imply that undue weight be given to royalties established earlier in time.”

The “FATT” is fighting back this week in comments filed at the US FCC against the “Coalition United To Terminate Financial Abuses of the Television Transition” (CUT FATT) proposal to address patent overreaching in the US DTV system.

Filings from Valley View, Philips/LG Electronics, Funai, Thomson, ATSC, Harris, Zenith, MPEG LA, Philips/Qualcomm, and Retire Safe merit future comment by the Reply Comment date of May 27 (see here).

But polemics risk overshadowing a broader and more fundamental point that is skirted in the filings:

ISDB presentation to Philippines, 3/09
ISDB presentation to Philippines, 3/09

The US ATSC DTV system, once touted as a model for US global prowess, has fallen behind rivals DVB and ISDB, priced out of the world market and under-featured, and now if some of these filings are to be taken at face value stubbornly saddled with an uncompetitive process based on lack of transparency and protracted litigation.

Indeed, these filings raise a darker picture that ATSC may at least to some become seen as little more than a cash cow royalty milking opportunity for a small number of foreign vendors at the same time that their home countries promote competing standards to gain market shares in burgeoning DTV markets and opportunities around the world in South America, ASEAN, and elsewhere.

In particular, several of these filings paint the picture that the only viable or appropriate forum to consider and address patent licensing issues are litigation forums like the International Trade Commission or federal courts, and anything else would be unprecedented, unworkable, and so forth.

But this has never been the case — patent and licensing issues have always been a major topic of ongoing concern by standards groups, regulators, vendors, and users in DTV.  The rival European DVB for example, has always played a variety of facilitating roles relating to IPR  — for a long and illuminating discussion on this topic by Carter Eltzroth, Legal Director, DVB Project see here.  If anything, the direction in recent years has been to reexamine, and some cases modify and become more proactive, in these facilitating roles, in light of well-known patent pool disputes like MHP.

And the Japanese-Brazilian ISDB system has recently played effective catch-up with DVB and ATSC by offering royalty free components, trade deals, proactive government-to-government involvement and faster time to market with new features (for background, see here).

So it may be helpful in reviewing these filings to consider a simple question — if you were looking to adopt a DTV system today (as many countries are), would these filings persuade you that the US DTV system, and the process and contentions surrounding it, would be worth adopting today?

References

“Good technical specifications are not enough
– DVB needs to be more proactive on IPR issues”

“15 years of the DVB Project”, Presentation at DVB World 2008 by Philip Laven, Vice-Chair, DVB (subsequently elected Chair of DVB)

Other notable features of the IPR policy of DVB are arbitration and fostering of patent pooling. This article provides a commentary on the DVB’s IPR policy and on its application. It also describes the work of the DVB in resolving IPR “gateway” issues when the perceived dominance of technology contributors, notably through control over IPRs, risked, in the view of some members, distorting new digital markets. In two cases DVB has created a licensing mechanism to dispel these concerns. In addition to the quality of its technical work, DVB’s success lies in its novel IPR policy and its ability to achieve consensus to resolve gateway issues.

“IPR Policy of the DVB Project: Commentary on Article 14 of the DVB MoU”, Carter Eltzroth, Legal Director, DVB Project, http://www.dvb.org/membership/ipr_policy/

Royalty-free standards, the very foundation of the Open Internet, are not even mentioned in the FCC’s 60-page Broadband Plan notice of inquiry.

Surprising?  Not really.

Bridging even first principles of the Internet era to the realities of telecommunications policy since 1934 is a high order challenge for communications policy scholars, regulators, and network practitioners.

But boiling down, there are three basic foundations/themes/policy tools that underpin network infrastructures and their regulation, and no serious policy consideration should agnostically treat them as co-equals:

  1. multiple proprietary solutions: think of the metric “market share”
  2. franchise/royalty-bearing standards: think of the metric “profit share”
  3. royalty free standards: think of the metric “deployment share”

Each is perhaps as millennial as common carriage; each has its merits, proponents, and detractors (and stimulus-response regulatory challenges); and each can claim to fit under the umbrella of the four principles of the recent, bare-bones FCC Internet Policy Statement (excerpted below).  Some might consider 2 and 3 as just variants of the same theme, but even a cursory look at the Digital TV standards debacle should highlight the fundamental difference.

Of note, Kevin Werbach, co-lead of the Federal Communications Commission Agency Review for the Obama-Biden Transition Project, maps the grey-area gaps of Internet policy regulation in an upcoming article, “Off The Hook”.

And at a symposium last fall on the legacy of the 1968 Carterfone decision, often invoked as the start of modern telecommunications regulation, Werbach also touched on a Carterfone-is-not-enough theme,  articulating the perspective that although “Carterfone established a principle of interconnection”, the decision alone produced “[n]o significant or game-changing competitive entry” without subsequent implementation standards.

Werbach went on to note “[s]tandards define industry structure … [c]rucial in network industries”, and to allude to the potential of the “FCC as a catalyst for open standards” and of “Reinvigorating Standardization”.

A suggested next step:  consider the critical role of royalty-free standards (as opposed to an easy vague acknowledgment of standards in general, which may devolve into captured, segment-favoring “franchise specifications”) and the need for a policy preference that recognizes and leverages royalty-free standards.

References

“Broadband Recovery Needs A Policy Preference for Royalty-Free Standards”
http://robglidden.com/2009/03/broadband-recovery-needs-royalty-free-standards/

Werbach, Kevin D.,Off the Hook(March 31, 2009). Cornell Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1371222

“Copps: FCC needs fifth net neutrality principle”, http://arstechnica.com/tech-policy/news/2009/04/a-pre-history-of-the-fccs-fifth-internet-rule.ars

“Beyond Liberalization II: The Impending Doom of Common Carriage”, Eli M. Noam, http://www.columbia.edu/dlc/wp/citi/citinoam11.html

From FCC Internet Policy Statement, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf:

“To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to …

… access the lawful Internet content of their choice.

… run applications and use services of their choice, subject to the needs of law enforcement.

… connect their choice of legal devices that do not harm the network.

… competition among network providers, application and service providers, and content providers.”

Recovery Act § 6001 (emphasis added)

Concurrent with the issuance of the Request for Proposal for grant applications pursuant to this section, the Assistant Secretary shall, in coordination with the Commission, publish the non-discrimination and network interconnection obligations that shall be contractual conditions of grants awarded under this section, including, at a minimum, adherence to the principles contained in the Commission’s broadband policy statement (FCC 05-15[1], adopted August 5, 2005).”

47 USC 256, Coordination for interconnectivity:

(b) Commission functions
In carrying out the purposes of this section, the Commission –

(2) may participate, in a manner consistent with its authority and practice prior to February 8, 1996, in the development by appropriate industry standards-setting organizations of public telecommunications network interconnectivity standards that
promote access to –
(A) public telecommunications networks used to provide   elecommunications service;
(B) network capabilities and services by individuals with  disabilities; and
(C) information services by subscribers of rural telephone  companies.