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FCC Set-Top Rules Rocked in D.C.

Wheeler says rules are 90% there, but concedes issues remain 9/19/2016 8:00 AM Eastern

WASHINGTON — Federal Communications Commission chairman Tom Wheeler’s pivot toward apps-based set-top box rules is still very much a work in progress.


By press time last week, programmers, app developers, ISPs, advertisers and even Amazon had flashed warning signs at Wheeler, and Senate Democrats had urged him not to rush into a scheduled Sept. 29 vote, relaying stakeholder concerns about the impact of the rules on content, contracts and the copyright regime.


Wheeler pledged to stick to the timetable and refused a bipartisan request from legislators to publish the text of the item. Meanwhile, the White House provided its support to the new plan.


Set-tops were the issue du jour at a Senate Commerce Committee oversight hearing where Democratic commissioner Jessica Rosenworcel added her voice to the chorus of questioners, putting an exclamation point on the pushback, if not quite a nail in the coffin.




At the hearing, Wheeler twice quoted Rosenworcel’s comment about the need to act on set-top reform for the sake of consumers, seeming to provide a public prod for action.


But when asked for her take on the set-top plan, Rosenworcel said that while set-tops are clunky and expensive — she said that was her personal as well as professional position — she has problems with the FCC getting “too involved in licensing schemes,” adding that she did not think the FCC had the authority.


She said she thought there is a workable solution, but also signaled it would take more work.


Democrats in both the House and Senate publicly professed their concerns with the set-top plan, following efforts by Wheeler’s staff to get them on board in meetings the previous weekend.


Those included Senate Commerce Committee ranking member Bill Nelson (D-Fla.), House Energy & Commerce Committee ranking member Frank Pallone (D-N.J.) and even vociferous cable and set-top critic Sen. Claire McCaskill (DMo.).


“I’ve never seen a unanimous opposition from providers, programmers and the creative community,” McCaskill said. “Usually in this chair, they’re on different sides. They’re all unified in their opposition to this.”


Wheeler pointed out that the Writers Guild of America West, at least, was on his side.


Republicans are even less sanguine about the proposal, as they have been from the outset.


Wheeler told the senators he was willing to continue negotiating — he will need to get Rosenworcel on board — and would even drop at least one provision related to MVPD- programmer contracts — one he said programmers had themselves pushed for — if it would help.


Wheeler conceded the item was only about 90% there, but seemed confident he could get the other 10%.


McCaskill said she was glad he acknowledged the rules were not there yet.




Wheeler defended the FCC’s approach to copyright protections in the set-top item.


“What the commission is trying to do,” he said, “is not to write copyright policy, but to write a policy inside its authority which does not interfere with existing copyright authority and with the contractual terms that copyright holders do inside that authority.”


Saying he would be working with his colleagues to try to lock down the item, Wheeler maintained that it was not the FCC’s goal to “become a judge of the contracts between MVPDs and programmers.”


If Wheeler does not get Rosenworcel’s vote, he could always issue a further notice of proposed rulemaking and seek comment on the new proposal. That would take care of critics who say the FCC should have provided more notice and time for comment on its switch to the new plan.


Standing up for Wheeler’s proposal was Sen. Ed Markey (D-Mass.). He held up a set-top wrapped in chains and compared that with an Amazon Fire Stick the size of a pack of gum. Markey said the box had not changed and that 100 million pay TV households can’t watch their pay programming on the Fire Stick.


He said only the FCC can do something about the problem, and that its proposal would free consumers from exorbitant rental fees, adding, “That lack of choice has to end now.”

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