How Many Tuner Enforcers Does It Take?

[Gregg Lengling]

Let me know if you see an FCC enforcement sleuth lurking around your neighborhood electronics retail store, probing for contraband TV sets without the mandated digital TV tuners. Or if you're hanging around the docks where TV receivers are brought ashore, maybe you'll spot federal customs agents poking through shipping crates to make sure all the ATSC tuners are where they should be.

Naaah. Probably not.

After the angst and legal skirmishes about an accelerated timetable for DTV tuners in TV sets of specific sizes, the process comes down to "What's in that box?" As it turns out, enforcement plans for the tuner mandate are still very murky, months after the latest rules took effect. In fact, the FCC's ruling (its June modification of the tuner mandate deadlines) has nothing specific to say about enforcement or penalties: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-121A1.doc.

Inquiries to the FCC generated predictable platitudes about having "a number of avenues available" to go after manufacturers or importers who do not comply with the rules. But there's nothing specific about prohibitions or penalties.

One FCC official informally acknowledged that he was "pleasantly surprised" that electronics dealers have been putting DTV tuner-equipped sets on their shelves.

Of course, since the regulations do not apply to retailers, there is no simple way to monitor whether half of mid-size TV sets and all large-screen sets entering the distribution chain include built-in DTV tuners as required.

Several informal surveys in late July--nearly a month after the mandate took effect--indicated that barely 20 percent of showroom floor samples included the necessary DTV reception capability.

Retailers and wholesalers say they are merely moving products through the distribution pipelines. Their warehouses of existing stock do not fall under the FCC's DTV mandate.

Meanwhile, the enforcers over at U.S. Customs and Border Protection are also still trying to figure out how to protect America from TV sets that lack DTV tuners.

It took a week for a customs spokesperson to find an answer to my question about the agency's enforcement of the tuner mandate rule. Again, the reply started with a collegial acknowledgement that, "CBP and FCC (sic) work very closely on a number of issues related to the importation of FCC regulated items."

But then, in well-honed officialese, the reality emerges.

"While we understand the general scope of the new requirement, CBP and FCC have not finalized how this particular requirement, and the actual technical specifications will be enforced for imported televisions," according to a customs office statement. "The agencies will be exploring these regulatory options in the near future."

This confession came nearly a month after the rules took effect. Admittedly, the customs agents, who are now part of the Department of Homeland Security, have had other priorities to confront since 2002, when the tuner mandate rules began to evolve.

(By the way, when you're dealing with the customs office, the bureaucracy has many layers. It's not just CBP, but the Office of Field Operations within the Office of Trade Compliance and Facilitation, which is part of CPB, which is part of DHS. No wonder it took a week to get a reply.)

Meanwhile, back at the FCC Enforcement Bureau, which is charged with making sure that TV set manufacturers comply with the rules, a spokesman said the agency already has the tools to handle compliance. Again, there's a quick transition to vague bureaucratese to describe possible actions against those who resist. The FCC said it may start by "issuing citations before assessing fines" if or when its video cops identify companies that are not complying with the tuner mandate.

To be fair, TV set makers seem to be fulfilling their end of the bargain, with DTV tuners built into the sets as required. But the major manufacturers recognize market uncertainty when they see it. Many set makers are adopting what they consider an appropriate posture. Although largely undocumented at this early stage, manufacturers are shipping more monitors without any tuners. Using an escape clause in the FCC rules, the manufacturers can opt to leave out analog tuners, and therefore not be compelled to install digital tuners into TV sets--giving customers a lower price and forcing them to use their cable or satellite receivers to pick up transmitted video.

Although electronics industry lobbyists are trying not to gloat about the enforcement imbroglio, they quietly point out that they had warned the FCC that there would be problems with the accelerated tuner mandate timetable. The requirement that 50 percent of sets with 25- to 36-inch screens must have a DTV tuner as of July 1, 2005, was considered particularly onerous since it was expected to be hard to tally shipments.

That's why set makers wanted to compromise on a March 1, 2006, date for all mid-sized sets.

The government's methodology for gauging DTV tuner compliance is also still a point of contention. Electronics companies had sought a formula based on the number of models that included DTV tuners rather than the universe of all TV sets. For example, when the FCC adopted its V-chip requirement, the introductory phase was measured by the number of models that included the feature, no matter how many sets of that particular model actually sold.

With DTV tuners, the measure is based on all TV sets--a more challenging barrier since manufacturers cannot predict which models will sell well.

Maybe the video police will have their enforcement prospects under better control when the next wave of DTV tuner mandates kick in. All mid-size sets must have DTV tuners by March. The FCC's latest proposed rulemaking (which accompanied the June regulations) suggests that all sets larger than 13 inches must have a DTV tuner by Dec. 31, 2006, which was scooted up from the original date of June 30, 2007.

Luckily for the DTV enforcers, they won't have to go hunting for the tiniest TV sets (with screens smaller than 13 inches). Or maybe they will. Small sets (including handheld receivers that you might take into a sports event) were exempt from the DTV tuner rules. But the latest round of rulemaking opens the possibility that those sets, too, must have built-in DTV reception, despite claims that other technologies (such as mobile video streaming) are better suited for portable, small-screen TVs.


CRACKDOWN COMING?

FCC officials were characteristically vague about how they will make sure that Americans aren't misled into buying new TV sets that don't have DTV tuners. Various bureaucrats told me they will "conduct investigations" and look at advertising, Web sites and other promotional vehicles to determine whether TV sets include the mandated DTV capabilities.

But they were quite guarded about whether their plans have been approved by--or will need the blessing of--FCC Chairman Kevin Martin.

Meanwhile, the deadline shifts impose other burdens on set makers, who are about to begin final designs for their 2006 holiday season products. Claiming they need 12- to 16-month lead times, the manufacturers are demanding clarity about the DTV tuner timetables.

The video cops on this case not only lack clarity. For now, they seem to be inspired by the visions of Mack Sennett and the competence of Inspector Jacques Clouseau.


Gary Arlen, president of Arlen Communications Inc., Bethesda, Md., has faced off against the video police for nearly three decades. He can be reached at GArlen@columnist.com.