O’Rielly: FCC leadership added ‘unworkable provisions’ to pay-TV’s ‘reasonable’ set-top plan 

Commissioner Michael O'Rielly (far right) said the FCC's recently postponed set-top box NPRM was full of "unworkable conditions."

Taking a victory lap after FCC Chairman Tom Wheeler backed off at the last minute on trying to pass his proposed set-top regulation plan, Republican FCC Commissioner Michael O’Rielly delivered a stinging post-mortem of the aborted NPRM today.

“After whiffing completely on the NPRM’s convoluted ‘three flows’ approach, Commission leadership recanted its opposition to an applications-based approach – one that I had been advocating for months – and centered its attention on it,” O’Rielly said in a memo published this morning. 

“An apps-based approach also was at the core of what the related industry filed as a compromise plan to achieve resolution of this proceeding,” he added. “Unfortunately, the leadership did not accept yes for an answer and tried to add a multitude of unworkable provisions to a reasonable plan. In doing so, they found a way to make all interested parties essentially hate the proposal, resulting in a last minute scramble. In a rare move, the Chairman pulled the item off the meeting agenda at the last minute, stating that Commissioners had run out of time to negotiate final technical changes to the document.”

Last week, Wheeler pulled his revised plan to regulate the leased pay-TV set-top business from the FCC Commission’s September agenda less than an hour before it came up for vote. 

After this scathing intro, O’Rielly then proceeded to outline three “problem areas” with the revised NPRM. One is, of course, the mandate that the FCC regulate MVPD multiscreen apps — the centerpiece of the proposal — itself. 

“Preserving any role for the Commission is highly objectionable, especially to the content and MVPD communities, because it could potentially alter private commercial agreements without full knowledge or understanding of the entire negotiation and tradeoffs made,” O’Rielly said. “Think of it like pulling a loose string from a sweater. Beyond the Commission having no authority or expertise in this area, such interference could undo important protections enacted in those commercial agreements. “

O’Rielly also took issue with the NPRM’s mandate for universal search.

“Specifically, MVPDs would be forced to provide entitlement data and other metadata to third parties via a mandated application program interface, or API, supposedly enabling a consumer to search all content available in one interface that could compete with the interface of a set top box,” he said. “This mandate would allow an MVPD’s over-the-top competitor access to all the proprietary information needed to undercut the MVPD’s content pricing to consumers, a truly disastrous outcome.”

Finally, the commissioner took issue with the mandate that MVPDs develop apps for every “widely deployed” operating system. 

“No one even knows how many apps this would be right now,” he added. “Is it 10? 20? Apple alone has three distinct operating systems (OSX, iOS, and tvOS) that probably fall under the definition of a widely deployed platform.”

Related articles:
Lawmakers, civil rights groups tell Wheeler to stop keeping set-top proposal a secret
Wheeler formally pitches revised app-based set-top proposal, includes integrated search
FCC's O’Rielly: New set-top plan ‘exists within a fantasy world of unlimited commission authority’
Set-top box order pulled from FCC’s September meeting agenda at last minute