FCC chairman Tom Wheeler says the FCC will start its informal shot clock on the Charter-Time Warner Cable deal as soon as the commissioners vote the protective order for confidential documents submitted for review in that deal, but that in the interim it is not "sitting around sucking eggs," that the process "is underway" and he is eager to start the clock.
That came in a press conference following the FCC's August public meeting.
The protective order was submitted for a commissioner-level vote because it deals with broader access-to-information issues in response to the court's remand of the FCC's protective orders for the Comcast/TWC and AT&T/DirecTV deal reviews.
Asked why he was waiting to start the shot clock until the item was voted—Republicans have issues with it and have yet to vote it—he signaled that was not stopping the FCC from reviewing the deal. "We have a team working on it. There is material that Charter has already filed. This is a process that is underway."
The protective orders circumscribe how confidential information submitted in that review is treated and shared with third parties. Wheeler said the reason the shot clock had not started, which would then trigger the establishment of a public comment cycle—was that there was information people needed to see before they can file, information for which protective orders were needed before it could be shared.
"Why should you start a shot clock in which in the early stages people won't have access to information necessary to inform their comments."
He said he hoped they would soon have a set of processes for how specific confidential information would be handled.
Asked by a reporter if that would be this month, Wheeler said they should ask those voting on the "protective order." The ball, he signaled, was in their court. "My colleagues have it sitting on their desk. There is a simple exercise. Yes or no."
His Republican colleagues addressed the issue of having to vote on the protective order before starting the shot clock.
Commissioner Pai said that the order and the clock should not be conflated. He said the commissioner is being asked to vote on the order as a condition for starting the clock when they are distinct questions.
Pai has proposed separating the protective order from the rest of the item dealing with broader issues of access to documents, establishing that no video programming confidential information can be requested by staff but would have to be voted on and explained by the full commission, and turning the remainder of the order into a public notice with comment on the broader issues related to the FCC's need for information in transactions generally and how third parties get access to it.
He said that proposal had been offered, but has not heard back. "It's not in our hands," he said.
Commissioner O'Rielly pointed out that the chairman only needs three votes to start the clock on the item—if there are three yes votes an item eventually passes even if the other two commissioners have not voted. "[The Chairman] should ask his own colleagues if this is something they are ready to do."
