Day 2 of Set-Top Box Rule, Congress v. White House

Wheeler said leading the FCC was "the greatest honor of my professional life." (Rob Kunzig/Morning Consult)

The Federal Communications Commission’s plan to open up the cable set-top box marketplace is continuing to receive harsh criticism from Capitol Hill one day after a grueling three-hour Senate hearing featuring backlash from Democrats.

But the White House on Friday reupped its own campaign in favor of the rule.

Jason Furman, chairman of the Economic Council of Advisers, mentioned the Obama administration’s support for the FCC’s proposal in a broader speech at the Searle Conference on Antitrust Economics and Competition Policy in Chicago.
“We have been pleased to see FCC Chairman [Tom] Wheeler actively listen to the many stakeholders involved to improve the proposal and believe that he is charting out a responsible way to address their meaningful concerns while being responsive to Congress’s explicit directive to ensure a healthy set-top marketplace,” Furman said.
The White House also supported an earlier version of Wheeler’s proposal.

But then nine House Democrats added their names to the list of skeptics on Friday.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and the committee’s top Democrat, Rep. John Conyers (Mich.) said in a joint statement that they have “very serious concerns” about Wheeler’s plan to set up a new licensing board to be overseen by the FCC.

That “may well exceed the FCC’s jurisdiction,” the committee leaders said.

Goodlatte and Conyers said they will be conducting oversight on the matter in “the weeks and months to come.”

“There are many unresolved questions about this proposal, not the least of which is the fundamental question of whether the FCC even has the authority to create such a regime,” the lawmakers said. “We are also concerned that this proposal encroaches upon the Judiciary Committee’s copyright jurisdiction and may not adequately protect creators’ rights and the contractual rights of parties.”

Republicans and members of the private sector, including Comcast Corp. and AT&T Inc., have criticized the licensing regime in Wheeler’s new version of a rule that is slated to receive a commission vote at the end of the month.

In a separate Friday letter to Wheeler, eight Democrats, including California Reps. Adam Schiff, Ted Lieu, and Judy Chu said they fear that the new rule oversteps the FCC’s authority.

“Only Congress possesses the right to construct a compulsory license as an exception to content producers’ right to license their work through private agreements,” the letter said. “We therefore suggest that you reconsider your intent to force a vote on the revised proposal.”

Eight Republicans also signed onto the letter.

Wheeler is expected to make changes before bringing the rule to a vote on Sep. 29, or he risks it being voted down. Democratic Commissioner Jessica Rosenworcel, the likely swing vote, told the Senate Commerce Committee on Thursday that she could not support the rule in its current form.

Separately, some of the same lawmakers are raising a longstanding complaint about FCC procedure — that the rule text is kept secret until after the commission votes on the item.

“While much remains unknown, what is clear at this point is that the proposal would benefit from public process,” House Energy and Commerce Committee Chairman Fred Upton (R-Mich.), Communications and Technology Subcommittee Chairman Greg Walden (R-Ore.), Goodlatte, and Conyers said in a different Friday letter to Wheeler.

“Absent a public vetting of the commission’s proposal, it is unclear what the commission is planning, let alone its impact,” the lawmakers said, adding that they have received conflicting reports about the contents of the commission’s rules. “Without further delay, we request that you release the text of your proposal,” they told Wheeler.

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