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Sunshine Prohibitions Lifted on FCC's Set-Top Item

Under pressure from various groups and legislators, including a petition filed by diversity groups, FCC chairman Tom Wheeler is letting stakeholders communicate with FCC staffers about the new set-top box proposal being vetted by commissioners.

Wheeler had kept the item under sunshine rule prohibitions on outside contacts with FCC decisionmakers until further notice even after it was pulled from the agenda for a public vote and the FCC's Sept. 29 meeting.

The FCC provided that further notice last Thursday, saying that the restrictions had been lifted.

That was not sufficient for the Future of TV Coalition, which continued to call for publication of the item and a further comment period so that stakeholders can vet it to know what they should be commenting on.

“Lifting the ‘sunshine’ prohibitions is meaningless if the public isn’t even allowed to know the details of the plan," the group said in a statement. "This isn’t just some ‘inside the beltway’ fight—it’s a question of whether the real-world risks to consumers and creators are going to be addressed or just swept under the rug."

In pulling the item from the docket, Wheeler had pointed to last-minute changes and edits that commissioners needed more time to go over.

"Does the new proposal continue to involve the FCC in setting licensing terms, in violation of copyright law? Does it still require TV providers to turn over sensitive viewer data to tech companies that aren’t covered by the strong privacy protections in the Communications Act? Does it finally abandon one-size-fits-all government technology mandates that are certain to slow down the unprecedented pace of innovation in the video marketplace," asked the coalition.

 "The FCC must comply with the purpose and goals of the Administrative Procedures Act and publicly release the details of the new proposal it intends to impose on the public. A notice given months ago on a completely different proposal simply isn’t enough. It’s time to let the sunshine in.”

The coalition includes major cable and satellite operators individually and NCTA: The Internet & Television Association.

“Any rulemaking process must incorporate the concerns of stakeholders. But until stakeholders have the opportunity to read the text of the proposed rule, we cannot have a fully informed conversation,” said Rep. Yvette Clarke (D-N.Y.). Clark, a leader in the Congressional Black Caucus, has also been a leading voice for transparency on the item.

Randolph May, president of the Free State Foundation, agreed that more sunshine was needed in the form of pulbishing the text of the new proposal.

“As someone with an extensive administrative law background, including serving as Chair of the American Bar Association’s Section of Administrative Law and Regulatory Practice and a member of the Administrative Conference of the United States, I’m pretty confident that if Chairman Wheeler and his colleagues don’t put the revised proposal out for public comment, this will become a textbook case in the lengths a federal agency will go to avoid transparency," said May. "I understand ex parte submissions will be filed that hint at this or that change in the FCC’s evolving proposal. But in this case, there is no doubt that there have been enough meaningful changes in the proposal that the public, not just the insiders, deserve an opportunity to review the latest proposal comment on it.”