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Why the industry wants Wheeler to publish the set-top box proposal, and why he might not


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Why the industry wants Wheeler to publish the set-top box proposal, and why he might not

Lawmakerson both sides of the aisle are pushing for FCC Chairman Tom Wheeler to publishthe full text of his revised set-top box proposal.

Butso far, it seems as if Wheeler will not budge.

On Sept.30, Sen. John Thune, R-S.D., sent the FCC chairman a urging him to issue a furthernotice of proposed rulemaking in the set-top box proceeding, calling it"the most transparent, inclusive and accountable" path forward.

"Yournew proposal is intended to benefit consumers, yet those same consumers are notcurrently able to read this far-reaching new plan," Thune said, addingthat affected stakeholders in the pay TV industry have similarly "had noability to examine the new proposal nor to provide fully informedfeedback."

Thune'sletter echoed recent comments from Rep. Tony Cardenas, D-Calif., who hasrepeatedly advocated for a further notice of proposed rulemaking, the additional commentperiod "would allow the public and stakeholders to weigh in on thisimportant issue that has the potential to affect so many workers andbusinesses."

Butaccording to Wheeler, both the public and the industry have had more thanenough opportunity for input.

"Golly,you know, this is something that has had public comment that has been going onfor a couple of years," Wheeler said after the FCC's Sept. 29 meeting. Thecommission had been scheduled to vote on the set-top box proceeding during themeeting, but the item was removed from the agenda shortly before the meeting began.

Differentstakeholders have been debating back and forth over this issue since theestablishment of Downloadable Security Technical Advisory Committee in late2014. The committee — whose members included representatives from , , , , , Samsung Group, ,ARRIS and TiVo Corp.,among others — was tasked with figuring out how to open up the set-top boxmarket while also protecting content.

Despitebeing unable to reach a consensus, the committee released its final report inAugust 2015. Essentially, the members of the committee were split between avirtual headend system proposal, favored by companies like Google and Amazon,and an apps-based approach, favored by the cable operators.

Wheeler,in his own set-top box proposal earlier this year, initially tried to moveforward on the former recommendation, which called for retail set-top boxessupported by network security. But after months of wrangling with the cableindustry, Wheeler ultimately changed course and embraced the apps-basedapproach.

InSeptember, Wheeler put out a fact sheet outlining his revised proposal. Sincethen, there have been various revisions, none of which have been made public.It is these revisions that Thune, Cardenas and others would like to see.  

Sayingthat between the DSTAC report and the comment period of the initial rulemakingproposal the industry has had "years" to comment is not exactlyaccurate. News of the revised proposal was announced a few weeks ago, and its detailsstill remain shrouded in secrecy.

Andundoubtedly, if the full text of the revised proposal is not released ahead ofthe final vote, it is an issue that will be raised as part of any legalchallenge. The Administrative Procedure Act requires that prior to arulemaking, an agency must file a notice with "either the terms orsubstance of the proposed rule or a description of the subjects and issuesinvolved."

Already,this argument is being used as part of the ongoing to the FCC's OpenInternet order.

Still,Wheeler's reluctance to release the full text of the revised proposal isunderstandable. In testimony before the Senate Commerce Committee, Wheeleraccused the cable industry of "playing rope-a-dope" with the 1996Telecommunications Act for the last 20 years. In that law, Congress directedthe FCC to create rules to make set-top boxes available for purchase at retailstores.

Wheelermay see a further notice of proposed rulemaking as an opportunity for furtherdelay and stalling.

Anddespite Thune's assertion that "there is no need or urgency for theCommission to rush behind closed doors to adopt a final order," time is aluxury that Wheeler does not have. It is already October during an electionyear. When a new president assumes office in January 2017, Wheeler will likelybe replaced.

Butwith all that said, releasing the text of the proposal is important. Accordingto Republican FCC Commissioner Ajit Pai, one version of the set-top box proposalgranted "almost a singular exception to a particular company." Pai,speaking after the Sept. 29 meeting, refused to explain further what thatexception would have been or to whom it might have applied, but considerationof a "singular exception" of any kind is sure to raise some concerns.

RepublicanCommissioner Michael O'Rielly also declined to give details about the exceptionthat had been considered, but noted, "The pressure is building … to makethe documents available so we can all have a conversation on what the specifictext is."