House Appropriations Bill Would Delay Set-Top Proposal

Republican lawmakers continue to try and use the appropriations process to block FCC Open Internet rules and further FCC process reforms that Democrats don't support, now with the addition of delaying the FCC's set-top box proceeding.

The House Appropriations Committee has marked up its 2017 Financial Services and General Government Appropriations Bill.

Under those general appropriations is $315 million for the FCC, a $69 million cut from 2016 and $43 million less than the FCC asked for.

The bill is chock full of communications-related provisions, from JSAs to cloud storage.

The bill "prohibits the FCC from implementing the net neutrality order until certain court cases are resolved" and blocks the FCC from voting on its set-top box proposal until "a study"—at least two have been called for by some members of Congress—is completed.

Actually, the FCC implemented the order last year, so it would have to stop implementing it, except for Comcast and Charter per merger conditions.

One provision would require the FCC to allow JSAs to transfer with TV station deals. The Commission had ruled in March 2014 that any JSA of 15% or more represented ownership and triggered duopoly prohibitions. Congress grandfathered that decision for existing JSAs, but took issue when the FCC required them to be unwound when part of a sale, pointing out that new licenses were actually issued for such transactions, which made the JSAs new and under the new restrictions.

A D.C. appeals court May 25 vacated that decision, but it could return, FCC Chairman Tom Wheeler has signaled. The bill provision would be moot unless the JSA decision is restored.

The net neutrality provision might appear to be potentially moot within days given that the U.S. Court of Appeals for the D.C. Circuit could rule anytime ("anytime" being as early as this Friday morning, when the next decisions are released). But the language is that the Open Internet order can't be enforced until the first date on which there has been a final disposition (including the exhaustion of or expiration of the time for any appeals).

That means it could extend through a Supreme Court challenge—it will almost certainly be appealed to the high court, which would add many months past when the D.C. court rules.

The bill also requires that any new regulations be made public three weeks before the FCC votes on them and prohibits the FCC from regulating broadband rates, either after or before the fact, and including by restricting data caps.

Republicans tried before, and failed, to block the Open Internet rules and other FCC actions via the appropriations process. Many of those are poison pills, and blocking the Open Internet rules would likely draw a veto threat from the President, as has been the case in the past.

Public Knowledge, which has pushed for the set-top proposal, was not happy.

"[A] new rider attacks the FCC's recent proposed rulemaking which seeks to revolutionize the video device and app marketplace," said Kate Forscey, government affairs associate counsel for Public Knowledge, "something consumers everywhere have applauded. We hope that when all is said and done, Congress will see reason and leave policy making to the appropriate committees of jurisdiction, rather than sneaking it into appropriations bills that undermine the ability of our government to do its job.

“We are disappointed that the majority has hijacked what should be a straightforward bipartisan appropriations process and used it as yet another vehicle for dictating policies that directly harm consumers and undermine competition," she added.

As to the FCC getting $43 million less than it asked for. "We are still reviewing impacts and we will work with the committee staff to make them aware of potentially critical resource shortfalls," said FCC Press Secretary Kim Hart.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.