FCC Ending Sunshine Restrictions Isn't Silencing Set-Top Transparency Critics
FCC lifting of sunshine restrictions on Chairman Tom Wheeler's set-top box proposal seemed due at least in part to the sizable lawmaker and industry criticism leveled about lack of transparency in the proceeding (see 1610050051, 1609290076, 1609300062 and 1609270048), but it isn't mollifying critics, stakeholders told us. "If the item itself isn't released so people can see what [the FCC] is actually proposing, this is just cosmetics," said cable consultant Steve Effros Friday. A democratic congressional critic likewise wasn't mollified.
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"The FCC must comply with the purpose and goals of the Administrative Procedure Act and publicly release the details of the new proposal it intends to impose on the public," said the Future of TV Coalition, with members including AT&T, Comcast and Dish Network, according to its website. "A notice given months ago on a completely different proposal simply isn’t enough. It’s time to let the sunshine in.” TechFreedom said likewise.
“While I appreciate that consumers and stakeholders can now discuss the set-top box proposal with the FCC, lifting the sunshine prohibition does not bring us closer to knowing what the actual proposal includes," said House Commerce Committee member Tony Cardenas, D-Calif., who was critical of FCC transparency on the issue, in a statement Friday. "The 2.5 page fact sheet is not enough for a rule of this scope and I will continue to urge the FCC to issue [a final NPRM]. Our entire creative economy is at risk of being upended and consumers and American workers deserve to know more. I have always agreed with Chairman Wheeler on the importance of a competitive marketplace, but there has not been adequate opportunity for public review and comment on the most recent proposal, which appears to differ substantially from the original NPRM.”
The FCC announced the lifting of the restrictions in a brief public notice Thursday. The agency declined to comment further. Pay-TV officials told us lifting the sunshine restrictions was likely motivated by the flack Wheeler was receiving, and Wheeler's office will continue negotiations with Commissioner Jessica Rosenworcel.
Now the pace of ex parte meetings and filings reported in docket 16-42 before the sunshine restrictions set in will resume, this time with interested parties meeting with commissioners to try to get details on where eighth-floor thinking is, said one cable industry executive. If a compromise solution between Wheeler and Rosenworcel looks imminent, there would be a flurry of ex parte activity as that solution gets "pressure tested" with industry, the executive said. But, the executive said, that compromise solution looks less likely with each passing day -- with pulling the sunshine restrictions and set-tops not being on this week's announced agenda for commissioners' Oct. 27 meeting being signs of lack of progress.
TechFreedom President Berin Szoka said the transparency criticism was likely secondary, and the main reason for lifting the sunshine restrictions is giving Wheeler the ability to say he didn't fail to get support for and move the item. "He can now say, 'People have questions, we are happy to hear them,'" Szoka said.
The move also helps keep up pressure on Rosenworcel in the form of opening the door to more advocacy by backers of the plan, Szoka said. Interested parties so far don't know anything new, but "there is so much at stake, I am sure everyone will feel they have to go in" and repeat their advocacy arguments to the eighth floor, he said. Effros questioned whether the lifting of restrictions affects Rosenworcel: "The pressure is already there."
Rosenworcel was probably under more pressure with the sunshine restrictions in place, and deliberations being kept on the eighth floor, but it might have become clear the draft wouldn't get a third vote on the proposal soon and keeping the item in sunshine for weeks would have been unprecedented, said the cable industry executive. A compromise could be a while in the making, if one comes at all, the executive said, since if the FCC were truly close to three votes it would have happened well before now.