Federal Communications Commission (FCC) Chairman Tom Wheeler's decision to pull the set-top box item from the September open meeting calendar was, perhaps, one of his most prudent. After all, that only happens when there is compromise, conflict or chaos on the eighth floor, and compromise was nowhere to be found. For a leader who is often wrong, but seldom in doubt, the specter of a voice vote defeat was not part of the agenda.
In the background, the chairman should have heard the chorus of concern from Congress, the cable and telco industry, and even some community groups, who have asked in unison for compromise to dictate the tone and tenor of the ruling. Undaunted, Wheeler pushed forward. With the two Republicans solidly opposed, the FCC was poised for another 3-2 vote along partisan lines. And yet, to her credit, Commissioner Jessica Rosenwercel defied convention, and refused to go along, signaling concern over the FCC's authority.
After months of back and forth on an initial proposal that was dead on arrival, the public still has only few clues as to the content of the FCC's cable set-top box rule. What we have been able to glean from ex parte filings, inferences, innuendo and hearsay cannot, and should not, pass for regulatory transparency. This is not what the Administrative Procedure Act intended, nor is it a sparkling reflection of sunshine in government.
Instead, we have a patchwork of phrases on what is "in" or "out" of the item, rather than a completed work on which to react. Despite expert analyses, none of us on the outside can know the full sweep of the order unless we can see it. To be sure, though, the rule has changed from what the public commented upon in the early stage of the process. Thus, the call for Wheeler to go beyond a "fact sheet" to full disclosure and a further notice of proposed rule-making.
In fairness to the chairman, commissioners and dedicated staff at the FCC, this is the way things always have been done, so there is resistance to change. But new times deserve a new approach, and the stakes of many FCC decisions have become increasingly higher for consumers, corporations and communities.
Given this turn of events, the chairman has several options at his discretion.
First, and best, he could release the current draft of the set-top box proposal for further public review. This would satisfy Congress, mollify the industry and, ironically, give consumer groups another opportunity to shape the outcome, even though they are pleased with the status quo. Secondly, the FCC could push forward with the essentially same proposal and spring the final rule on the world after acting behind closed doors. This would be the worst option. And third, the FCC could defer action on set-top boxes until a true compromise is reached after a more fulsome debate on the initial plan and the more recent recommendations.
The calendar should not be an excuse for hasty action on cable boxes. Politics aside, Congress clearly understands the long-term implications of this decision and has done a good job of expressing its will without overstepping its boundaries.
Wheeler does not have many more big decisions left in his tenure. While net neutrality can be considered a political victory, the broadcast incentive auction has been far from successful, as is the FCC's effort to police privacy. Although an independent regulatory agency, the FCC is in no danger of ceding autonomy if it heeds Capitol Hill's call for openness. In fact, a bit more glasnost would be in everyone's interest and could lead to a new era of détente between Congress and the Commission. Wouldn't that be a good way to close this chapter of the "Obama Communications Commission"?
In short, the chairman has only a few opportunities to define his legacy beyond presiding over the most divided FCC in recent history. If prudential policymaking matters to Tom Wheeler — and I believe it does — the set-top box decision is a good place to make such a statement.
Hoffman is chairman of Business in the Public Interest and adjunct professor at Georgetown University. He is a former chief of staff and senior legal adviser to an FCC commissioner.
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