According to sources inside and outside the FCC, there is definitely some stakeholder unhappiness over FCC Chairman Tom Wheeler's decision to keep the set-top plan under a sunshine rule restriction on stakeholder communications with commissioners over the proposal.
Word has it that some parties may file something at the commission questioning the FCC's ability, or at least the decision, to do that.
When the chairman took the item off the public meeting, he put it on circulation. The sunshine rule prohibitions on communications with decisionmakers usually apply to items in the seven days before a public meeting, and are traditionally lifted after an item has been taken off the meeting calendar, said one industry critic of that decision.
Related: Sen. Thune to Wheeler: Set-Top Plan Needs FNPRM
Asked about keeping the item under the sunshine rule so that outside parties could not talk with the commissioners about the item, the chairman's office pointed to the rulebook and its authority "Where the public interest so requires in a particular proceeding" to "retain the discretion to modify the applicable ex parte rules by order, letter, or public notice."
In this case, they said, the modification "is warranted to allow continued deliberations by the Commissioners on the remaining open issues." Wheeler said following the item's removal from the agenda that it was all about "running out of time" on the latest iteration of the proposal, which included edits and content tweaks.
Related: FCC Unveils Phased Post-Spectrum Auction Repack Plan
One FCC source suggested some critics of the proposal aren't happy with the decision, particularly given that there were calls to publish the text so the public and stakeholders could comment on it.
At the moment, not only can those stakeholders not see the item -- Wheeler has signaled he is not publishing the text or issuing it in a further notice -- or talk to commissioners about it per the sunshine rules, but if the chairman gets three votes under those deliberations, the item can be approved without ever having a public vote.
