More Questions Than Answers as Final Vote Nears on Chairman Wheeler’s Still Secret Plan

With less than 24 hours to go before the FCC is scheduled to vote on a final order for new set-top box mandates, lawmakers, stakeholders, and consumers are still in the dark, left wondering what’s in the rule after Chairman Tom Wheeler scrambled to finish a last minute rewrite of an increasingly problematic proposal.

Key questions remain unanswered; it’s unknown whether the Commission will finally address the objections that stakeholders, lawmakers, and advocacy groups from across the spectrum have consistently voiced for months:

· Protecting copyright. The FCC has no legal authority to dictate, revise, or interfere with the licensing agreements between content creators and distributors. Will these latest revisions respect this red line, or will the FCC once again try to stick its nose under the tent of content licensing and get into the business of micromanaging the content licensing marketplace?

· Protecting consumer privacy. Requiring TV providers to turn over private customer data, including previous viewing patterns and financial transactions, to third party tech companies would strip viewers of their rights and remedies under federal privacy statutes. Will the FCC drop mandates that undermine statutory privacy rights?

· Promoting innovation. The TV industry is already evolving to offer apps-based, boxless solutions. Will the FCC’s rules encourage this evolution, or set up new bureaucratic barriers to undermine this already-accelerating embrace of apps that allows consumers to ditch the box entirely?

Defenders of Chairman Wheeler’s mandate are claiming that the final rule presented tomorrow will address these concerns. But these assurances should be taken with a huge grain of salt; after all, no one outside the walls of FCC headquarters has seen the latest re-write.

Stakeholders heard similar assurances earlier this month when the last iteration of this proposal was circulated to Commissioners. Chairman Wheeler, his staff, and their Big Tech allies insisted that the Commission had heard the unprecedented outpouring of public comments and changed course.

But at a subsequent Senate hearing, a bipartisan majority of FCC commissioners acknowledged that the revised plan continued to exceed the Commission’s legal authority in ways that would trample on content creators’ exclusive rights. Both Democrats and Republicans in the House and Senate have subsequently continued to raise critical questions about how the plan will impact copyright and privacy protections.

There’s an achievable way to meet the FCC’s stated goals — increased competition and consumer choice for video devices — without undermining the creative economy, scrapping consumer privacy protections, or creating massive new bureaucratic barriers to innovation. But the previous iterations put forward by Chairman Wheeler have all fallen well short of this standard, and blind promises from his allies that this time is different — before they’ve even seen the final rules — don’t offer much reassurance.

Last week, more than 60 House Democrats led by Rep. Tony Cárdenas asked the FCC to release the re-written proposal to the public so that we can all know whether the Commission has finally addressed these longstanding concerns. With less than 24 hours to go before the scheduled vote, it appears the FCC has rejected this request from dozens of Democratic Members of Congress for basic transparency.

Since the start of this debate, an unprecedented coalition of content creators and distributors, labor organizations, civil rights leaders, 200 members of Congress, and more than 300,000 concerned citizens have all stood up to make their voices heard. Because the final rule remains locked behind closed doors, we’re all left to question whether our voices were even heard.