It appears FCC chairman Tom Wheeler could not secure the three votes needed for his set-top revamp proposal, at least not yet.
That comes after major pushback on the vote from legislators from both parties, ISPs, studios, unions and some diversity groups.
"The Set-Top Box Order has been removed from the September Open Meeting Agenda. The proposal will go on the Commission’s circulation list and remain under consideration by Commissioners," the FCC said just 20 minutes before the start of the public meeting where it was to have been voted.
“It’s time for consumers to say goodbye to costly set-top boxes," FCC Chairman Tom Wheeler, and Democratic Commissioners Jessica Rosenworcel and Mignon Clyburn said in a joint statement. "It’s time for more ways to watch and more lower-cost options. That’s why we have been working to update our policies under Section 629 of the Communications Act in order to foster a competitive market for these devices. We have made tremendous progress – and we share the goal of creating a more innovative and inexpensive market for these consumer devices. We are still working to resolve the remaining technical and legal issues and we are committed to unlocking the set-top box for consumers across this country.”
At a press conference following the nonvote, Wheeler said it was simply a matter of "running out of time." Wheeler was asked about putting out his new set-top plan for further comment. He said he did not think this was an issue that needed more comment. "All that has happened is that the deliberative process that has been going on continues to go on," said the chairman.
“We are pleased that the FCC has chosen to delay consideration of its set-top box item, and hope that additional time will lead to meaningful public review and comment on any newly-crafted proposal under consideration," said NCTA: The Internet & Television Assocaition, in a statement. "Our industry is committed to a future where viewers have the freedom to watch their favorite shows on a wide variety of tablets, streaming consoles, smartphones and other connected devices. We will continue our efforts to innovate in the marketplace to expand consumer choice, promote market innovation, protect the rights of content holders, and respect consumer privacy.”
“Today’s vote delay is an unequivocal loss for the tens of millions of Americans across the country who are forced to spend their hard-earned money on overpriced set-top box leases that cost them hundreds of dollars a year," said Sen. Ed Markey (D-Mass.), who had pushed hard for the item vote, including holding a press conference this week with other legislators. " I am extremely disappointed that the majority of the FCC Commissioners have not yet come to an agreement to provide relief for consumers for these bloated set-top box rental fees and certainty to companies who wish to innovate with new products. I urge the Commission to complete this rulemaking as soon as possible. Consumers have waited for more than two decades for the promise of a robust set-top box marketplace to be fulfilled; they should not have to wait one more billing cycle.”
Rep. Anna Eshoo (D-Calif.), ranking member of the House Communications Subcommittee, who had joined Markey in that press conference, vowed to continue the push.
“I will not give up the fight to help my constituents break open the box that results in consumers paying exorbitant fees to cable providers each year,” Eshoo said. “Consumers have been waiting for twenty years for relief from these fees. This disappointing delay will cost them even more money. I urge the FCC to move forward with new rules to unleash competition, choice, and innovation without further delay.”
Public Knowledge, which had also been lobbying hard for the bill, was hopeful that the delay was only that.
“We are disappointed that the Commission was unable to adopt this item today," said senior counsel John Bergmayer. "While this appears to be a short-term delay, consumers are getting bilked more each day this drags on."
Rosenworcel, whose vote is key, has had issues with the proposal to have the FCC backstop app licensing agreements, and reached out to programmers this week to clarify their problems with the item. Programmers said they still had many.
While the latest iteration of the Chairman Tom Wheeler's set-top proposal was said to have backed off the FCC's explicit role in backstopping app licenses to make sure they are reasonable and not anticompetitive, that did not appear to be enough for programmers.
According to various sources, the proposal also has included a complaint process by which the FCC could review issues with the app licenses.
According to an ex parte letter to the FCC dated Sept. 28, programmers made it clear that if the FCC were in any way involved, they could not support the item.
“Competition is the law, and the FCC has an obligation to continue working toward solutions that bring real choice, innovation and lower prices to consumers," said INCOMPAS CEO Chip Pickering. "The members of the commission are smart, well intentioned, and we believe they will find common ground that will open the market and promote innovation. For competition to rise, the set-top box monopoly must fall, and we look forward to working with all members of the FCC toward this shared goal.”