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Programmer Pressure Deals Set-Top Setback for Wheeler, FCC

WASHINGTON — When programmer push came to FCC shove last week, the latter moved.

After announcing a Sept. 29 vote on what appeared to be at least the third iteration of his “unlock the box” set-top plan, Federal Communications Commission chairman Tom Wheeler was unable to get a version of that plan that would secure three votes in time for the monthly public meeting. He pulled it from the agenda at the last minute — some commissioners didn’t learn of it until a half hour before the meeting’s scheduled start.

Wheeler said it was a case of running out of time on edits and content tweaks, but it was clearly also a case of counting votes.

Read more about the FCC's set-top proposal.

While the item was not voted, the chairman put it on circulation. That means if he gets a third vote, it can be approved without a public vote, though that might not sit well with various parties, including cable operators, members of Congress and Republican members of the commission. They were still calling last week for the FCC to publish the text before a vote, preferably in a further notice of proposed rulemaking that would require further public comment.

That doesn’t sound like it is going to happen. Wheeler-said last week the issue had been around for a couple of years, adding, “I don’t think this is an issue where the public has not had an opportunity to express themselves.”

Sources said the chairman had offered up a new version of his plan last week that put some distance between the FCC and oversight of an app standards-setting body, but not enough for programmers or cable operators, and apparently not enough for the third vote he needed, generally believed to be that of FCC commissioner Jessica Roseworcel.

While the chairman’s proposal would have backed off language that had the FCC backstopping license agreements on the front end, it still had a complaint process that would allow the commission to weigh in on “reasonableness” and “competitiveness.”

Programmers made it clear to Rosenworcel that any FCC role in licenses or contracts was still a nonstarter.

So did cable operators. “Heavy-handed government regulation, based on questionable legal authority in a fast-moving marketplace will stop the apps revolution dead in its tracks,” said Comcast senior executive vice president David Cohen following the item’s removal from the meeting docket.