Programmers: FCC Set-Top Talks ‘Like Negotiating Against a Mime’

Independent programmers continue to vent their frustration over Federal Communications Commission Chairman Tom Wheeler’s refusal to release his revised cable set-top box final rule. They don’t know what’s in it, which they say makes their discussions with FCC officials almost meaningless.

“It’s like negotiating against a mime,” said Victor Cerda, a senior vice president at the independent Spanish-language network Vme, in describing discussions with FCC officials on the secretive proposal.

“We have to sit there and present it and hope that through their body language, we can glean some idea of what is being worked into the rule,” said Cerda during a Monday press call.

Wheeler abruptly pulled his set-top rule from the commission’s open meeting agenda on Sept. 27 after he was unable to secure the support of his fellow commissioners on important provisions in the plan. The goal of the rule is to open the set-top box market to apps, relieving pay-TV subscribers from the need to rent physical set-top boxes from cable providers.

A key sticking point in the rule raised by Democratic Commissioner Jessica Rosenworcel — widely seen as the swing vote on the issue — revolved around the FCC’s authority to oversee a copyright licensing board made up of programmers and pay-TV providers.

Wheeler said at the time that new drafts of the proposal were being circulated as late as the night before the scheduled vote, and that more changes were likely in the coming weeks. Since then, lawmakers on both sides of the aisle and representatives from across the television industry have urged Wheeler to publish the text of the shifting proposal in order to give stakeholders and the public a chance to provide input.

Independent programmers continued to beat that drum on Monday, explaining that whatever is in the final proposal could do greater harm to them than to their larger peers. “We are in the most vulnerable part of the ecosystem,” said Robert Rader, general counsel at the television network Ovation. “Small waves can tip us over.”

“We’re in the communications industry,” Rader added. “And for us to get so little communication in how our own industry is being transformed — without our knowledge, without our participation in any genuine and meaningful way — it only can breed concern and a sort of anxiety.”

On Oct. 6 the FCC lifted the “sunshine” prohibition on the set-top proposal, allowing stakeholders to lobby FCC officials on the issue. But without knowledge of the proposal’s contents, Rader said the commission’s move is “an elevation of form over substance.”

“What am I commenting on exactly?” Rader said. “I appreciate it, but it doesn’t give me anything meaningful to actually address.”

The programmers said they will continue to push for a Further Notice of Proposed Rulemaking, or FNPRM, that would require the commission to publish the set-top plan and open it up to another months-long public comment period.

Both Democratic and Republican lawmakers have called on Wheeler to issue an FNPRM on the set-top rule, as have several civil rights groups and the Congressional Black Caucus.

But other groups want the FCC to move quickly on set-top. In a letter sent Monday to the commission, 76 organizations — including Public Knowledge, Consumers Union and the New America Foundation’s Open Technology Institute — called on the commissioners to advance the set-top rule without delay.