Set-Top Order May Not Come for Weeks, FCC, Industry Officials Say; Sunshine Extension Slammed
Internal voting rules mean it’s likely to be at least several weeks before the FCC approves the set-top draft order unexpectedly pulled from Thursday’s meeting (see 1609290076), said former and current FCC officials in interviews Monday. That’s several weeks that entities won’t be able to lobby the commission on the item because it remains restricted under sunshine rules after being pulled, which a coalition of civil rights leaders called “highly unusual” in a petition filed Sunday and in an accompanying news release. The petition asks Chairman Tom Wheeler to release the text of the draft order and allow the public to comment. Wheeler’s decision to “impose rules that silence our voices, while decisions impacting our community are settled behind closed doors, is unacceptable,” said National Urban League CEO Marc Morial. “The FCC must unlock the plan and allow for meaningful feedback.”
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For the draft order to be approved, Wheeler and Commissioner Jessica Rosenworcel would have to resolve the differences that led to the item being pulled Thursday. Though some industry officials have said the two sides are relatively close together and disputing over small details, others said such a dispute could likely have been cleaned up after a vote through editorial privileges. The item being pulled suggests the two sides are disputing concepts that aren't easily resolved, industry officials said. Rosenworcel is seen as focused on the aspects of the set-top plan that involve FCC oversight of contract terms (see 1609230058).
Wheeler likely wants the item to be approved as soon as he can secure Rosenworcel’s vote, since delay gives opponents more time to attack the draft, a pay-TV official told us. FCC internal “must-vote” rules are likely to keep the item from being immediately approved even if all three Democrats vote for it, current and former FCC officials told us. Under those rules, three votes on an item means the remaining commissioners have a deadline to vote on the item, or their votes are counted as “not participating” -- the rule is intended to prevent a commissioner from indefinitely delaying the approval process, a former FCC official told us. The must-vote rule applies to items that have been circulating for more than 21 days and have three commissioner votes -- those who haven’t voted then have “12 calendar days from the Friday after the day when the quorum plus 21 days is established” to vote, an FCC spokeswoman said. “An office can request a 7-day extension before midnight on the must-vote deadline.” Since Republican commissioners opposed the set-top item, they're seen as likely to take the maximum allowable time on the item, industry officials said.
“The FCC’s policy and practice has been to seek additional public comment when a rulemaking or major adjudication was not ready for vote,” said Multicultural Media Telecom and Internet Council President Kim Keenan in a release Friday criticizing the decision to keep the item under sunshine restrictions. An FCC spokeswoman told us doing so is within FCC rules, and attorneys that follow the commission were divided on how common the practice is. Several communications lawyers told us it was unusual for the FCC keep an item on sunshine after pulling it. Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman disagreed. The FCC has the power to take items off permit-but-disclose at will, he said, and has in the past also waived sunshine rules for some items. “I don’t think it’s odd at all,” he said.
The criticism that the commission hasn’t allowed enough comment on the current version of the draft item is unfounded, said an industry official who supports the FCC plan. The item is based on the multichannel video programming distributor-backed app proposal and has been the subject of a flurry of ex parte filings, the official said. That’s a stance that echoes Wheeler’s own comments from Thursday’s meeting, where he said the retail set-top industry was the focus of debate for decades. Industry officials said the large changes in the item since it was an NPRM could lead to Administrative Procedure Act challenges in the future (see 1609090064).