Wheeler: ‘It Was Simply a Matter of Running Out of Time’

(Rob Kunzig/Morning Consult)

The abrupt delay Thursday of the Federal Communications Commission’s vote on its cable set-top box rule came after a frenzy of activity over the last several days, according to FCC filings and the commissioners.

“It was simply a matter of running out of time,” Chairman Tom Wheeler told reporters in a press conference after the meeting. “I can assure you that our staffs have been working late nights, including last night. Commissioners were talking last night.”

It was the first official explanation for the sudden and indefinite suspension of the big-ticket item. The delay was announced in a joint statement from the three Democratic commissioners 30 minutes before the scheduled vote.

All three Democratic commissioners — including Jessica Rosenworcel, who is widely seen as the key swing vote on the proposal — expressed a commitment to eventually passing a set-top box plan, with the statement saying they’re working on “resolving the remaining technical and legal issues.”

Republicans on the commission were less involved. In a separate news conference, Commissioners Ajit Pai and Michael O’Rielly said a new version of the set-top plan appeared in their email inboxes at 9 p.m. on Wednesday.

The Republicans said they had no time to review the proposal, and that they weren’t aware until minutes before the start of the meeting that the vote would be delayed. They also said they weren’t part of the late-night commissioner conversations referenced by Wheeler.

“The conversations the chairman alluded to that went on last night? I had zero,” O’Rielly said.

Three weeks ago, Wheeler released a revised plan that scrapped an earlier proposal to open up set-top boxes to third-party tinkering. In its place, he proposed that the FCC mandate the development of pay-tv apps, through which consumers could stream content through a device of their choice.

But both industry representatives and some lawmakers on Capitol Hill — including several powerful Democrats — pushed back against the inclusion of a copyright licensing board that would be overseen by the FCC. Rosenworcel also questioned whether the commission had the authority to oversee the board.

During the post-meeting press conference, Wheeler was asked whether he had considered dropping the FCC’s role in copyright licensing from the plan altogether, an idea discussed by industry representatives and the commission.

“That’s a great question, but I’m not going to negotiate standing here,” Wheeler said.

O’Rielly said the FCC’s role in copyright licensing had changed from a previous version, but his understanding was that it was “still there” as of Wednesday night.

“The last version I saw, it still had a role for the commission,” O’Rielly said. “Some would say it’s a backstop, but I would say it’s still got its tentacles involved.”

Rosenworcel was courted by industry representatives over the copyright question in the weeks before Thursday’s meeting. FCC filings show that she and her staff were engaged in last-minute discussions with opponents of the proposal’s licensing regime.

On Wednesday, Rosenworcel aide Marc Paul contacted programming and content industry representatives to discuss their legal concerns with Wheeler’s plan. According to an FCC filing, industry representatives told him they could not accept any FCC oversight of the licensing process. That included any provision allowing the commission to step in through a complaints process — a possible solution floated in a filing by Inc.

The FCC filing showed that Paul also asked the industry representatives for their thoughts on a proposed two-year assessment period of the pay-tv apps market, which would allow the FCC to take a second look at whether the market required federal oversight to enhance competitiveness. The industry representatives did not expressly oppose that idea, but they stressed that the commission would be unable to address any complaints about the standard license during that two-year time period, according to the filing.

In a separate FCC filing, Rep. Tony Cárdenas detailed a phone conversation between himself and Rosenworcel a day before the planned vote. The California Democrat expressed his concerns about the FCC’s ability to review or change standard licenses between programmers and pay-tv providers. He also suggested to Rosenworcel that the FCC delay the vote and issue a new proposal that would be open for public comment, according to the filing.

Cárdenas thanked Rosenworcel for “being receptive to my concerns and those of the content community, and for thoughtfully working to improve the proposal in advance of the vote on September 29,” the filing showed.

Last Friday, Cárdenas wrote a lettersigned by 63 other House Democrats, urging the FCC to delay the set-top vote and issue a new proposal for public comment.

In the post-meeting press conference, Wheeler said releasing another proposal for public comment is a nonstarter.

“You know, this is something that has had public comment, that has been going on for a couple of years,” he told reporters. “I don’t think this is an issue where the public has not had an opportunity to express itself, or has not been heard.”

Morning Consult