Wheeler Ramps Down Agenda

WASHINGTON — It looks like Federal Communications Commission chairman Tom Wheeler won’t get some of his most contentious regulatory proposals out the door before he’s out the door.

Wheeler pulled his business data services re-regulation proposal off the Nov. 17 meeting agenda last week under pressure from Congressional Republicans who made it clear they did not want any 11th-hour regulatory push with a new sheriff coming to town. That would also appear to spell curtains for Wheeler’s controversial set-top box revamp.

Cable operators had opposed both efforts, though NCTA: The Internet & Television Association wasn’t commenting last week. The trade group tends not to exult publicly in regulatory victories.


Wheeler wanted to vote those items out; that was clear from his press conference after the FCC’s mini-meeting, the business end of which lasted all of a minute or so as the pulling of the BDS revamp and three other items was announced and a single noncontroversial item was voted.

Among the items not getting a vote was one to expand the number of hours of video-described programming cable and broadcast networks must provide. NCTA and movie studios had opposed that, too, as beyond the FCC’s authority under statute.

Wheeler said it was a “shame” hospitals and small businesses would not get the benefits of his BDS reforms, and “tragic” that 1.3 million blind and sight-impaired people would not be getting expanded access to video programming because the items had been dubbed “controversial.”

The items pulled from the meeting are still on circulation and could be voted if there are three Democratic votes for them — an FCC source said the decision to pull the items was the chairman’s alone — but getting those votes appears unlikely, according to various sources inside and outside the FCC and given the Republicans’ warnings.

The warnings came on at least three fronts. Citing similar letters from Democrats eight years ago, when Obama won the White House, Wheeler got letters from the leadership of the House and Senate commerce committees warning against voting “controversial” items, seconded by the FCC Republican commissioners; a separate letter came from the House majority leader and all the Republican House chairs issuing the same warning to all federal agencies — executive and independent — threatening to overturn any items voted; and the House passed a bill last week that would make it easy for Congress to invalidate with a single vote any last-minute regulations from an agency like the FCC.

The set-top revamp proposal, which drew criticism from Internet providers and legislators on both sides of Capitol Hill, is also likely DOA. That item could also have spelled the end of Democratic commissioner Jessica Rosenworcel’s tenure.

Two senators from Rosenworcel’s own party last week briefly put a hold on her nomination, which is not likely to get through the Republican lame-duck Congress. They then lifted it anyway, saying Rosenworcel might be willing to vote some of the pending items. Republicans would almost certainly block such votes.


If Rosenworcel is not confirmed, President-elect Donald Trump would get to pick a new Democrat as well as a new chairman. If custom dictates, that pick would be deferred to the incoming Senate minority leader, Chuck Schumer (D-N.Y.). Trump, though, has not made a habit of following form and ran on a platform of shaking up the old order.

Rosenworcel was widely believed to have had continuing issues with the impact of the set-top box revamp on contracts and copyright. She shared those concerns with cable operators, studios and the U.S. Copyright Office and some Hill Democrats and Republicans and others, but not with Wheeler or activist groups like Public Knowledge, whose former head, Gigi Sohn, is a top Wheeler adviser.

John Eggerton

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.