Pai Under Pressure to Close Set-Top Proceeding, Likely Requiring Full Commission Vote
House Commerce Committee Republicans told the FCC to shut down its set-top box proceeding Wednesday, in a letter to new Chairman Ajit Pai. “Sounds good to me!” Commissioner Mike O’Rielly quickly agreed on Twitter. “Time to move past this discredited proposal.” Closing the proceeding would require a vote by the full commission, longtime communications attorney and Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman told us.
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Pai and O’Rielly had criticized the efforts of former Chairman Tom Wheeler, who unsuccessfully pushed a set-top order last year. The proceeding attracted a mix of Republican and Democratic critics on Capitol Hill, while Rep. Anna Eshoo, D-Calif., and Sen. Ed Markey, D-Mass., defended Wheeler’s set-top agenda.
An FCC spokesman declined to comment on the procedural requirements for closing the set-top docket, but said the commission has received and is reviewing the letter. Pai and O’Rielly are seen likely to support the ending the proceeding, and one industry official said it's likely the letter’s release was coordinated with the Republican FCC members. Though the docket being closed wouldn’t prevent entities from lobbying the agency for new set-top rules, a whole new rulemaking would be required to implement them. If the proceeding were left open, the FCC could in theory approve a draft item at any time, though such a move would become more and more vulnerable to challenge the longer the proceeding sat “stale,” an industry official said.
An aide to Commissioner Mignon Clyburn, the sole Democrat on the commission now, declined comment on the House letter. She was seen as backing Wheeler’s set-top proposal last year. Former Democratic Commissioner Jessica Rosenworcel voiced concerns last year, eyeing copyright implications (see 1609150045).
Commerce Committee Chairman Greg Walden, R-Ore., and Communications Subcommittee Chairwoman Marsha Blackburn, R-Tenn., led the letter, signed by all GOP members of the Communications Subcommittee. “On a procedural note, the Commission should engage in the healthy practice of closing dockets that are no longer under active debate and consideration,” the lawmakers wrote. “The FCC’s proposal remains an unnecessary regulatory threat to the content creation and distribution industries. … Finally, this docket should be closed to give video programming distributors a clear sign that they can bring technological advances to set-top boxes and video delivery without fear that the Commission overturn them by regulation.” Content creators need a “clear indication” of the proceeding’s closure, they said. The Republicans also criticized how the proceeding was conducted last year, referring to “shortcuts” that “tainted” the efforts and compel the proceeding shutdown.
Public Knowledge Senior Counsel John Bergmayer pushed back. “Chairman Pai should continue the FCC’s work to bring consumers relief in this matter,” he said in a statement. “Despite the change in administration, the FCC has a law to abide by and an obligation to implement. Section 629 of the Communications Act is the law of the land, and it directs the FCC to ensure that consumers can choose from a competitive market for 'unaffiliated' devices that can access their complete cable TV or other pay-TV subscriptions.”
Spokespeople for Rep. Yvette Clarke, D-N.Y., a critic of last year’s set-top efforts, Eshoo and new Communications Subcommittee ranking member Mike Doyle, D-Pa., didn’t comment Wednesday. Clarke had requested a GAO study on the issues, not yet released.
Whether the proceeding is closed or not, it’s extremely unlikely that any aspect of the FCC’s set-top proposals would be acted on under the Pai administration, said content and pay-TV industry officials. Though some aspects of a software based set-top security plan were proposed and endorsed by the pay-TV industry, they were seen as an alternative to the FCC’s more stringent plan, and won’t be resurrected in the absence of that threat, industry officials said.
Pay-TV companies are seen as moving away from set-tops in response to market forces rather than regulation, a content official said. The FCC’s set-top proposal would have dealt with the boxes and the technology that will replace them, Public Knowledge Vice President Chris Lewis told us. It’s “obfuscation” to pretend that industry phasing out physical boxes over time will accomplish the same things the rulemaking would have, he said. If the FCC closes the proceeding, it will be counter to the congressional directive to promote competition in the set-top market, Lewis said: The agency’s action “doesn’t change the law.”