From: The Honorable Tony Cardenas
Sent By:
anna.hevia@mail.house.gov

Date: 9/20/2016

Current cosigners: Pete Aguilar, Brad Ashford, Brendan F. Boyle, G. K. Butterfield, Wm. Lacy Clay, Eliot L. Engel, Gene Green, Luis V. Gutiérrez, Hakeem S.
Jeffries, Ann Kirkpatrick, Ted Lieu, Grace F. Napolitano, Pedro R. Pierluisi, Cedric L. Richmond, Bobby L. Rush, Kurt Schrader, Dina Titus, Norma J. Torres (18)

Dear Colleague,

As you may know, for the past few months the Federal Communications Commission has been developing a proposal to promote competition in the set-top box market. The original Notice of Proposed Rulemaking was voted on by the Commissioners in February 2016
and was followed by a very active comment period.

On September 8, the FCC released a fact sheet on a new version of the proposal that was circulated with the Commissioners in advance of the September 29, 2016 open meeting, at which it will be voted on. Based on the limited information available to the public,
however, the new proposal differs greatly from the one laid out in the initial NPRM.

The FCC can use a Further Notice of Proposed Rulemaking (FNPRM) to receive comment on a new or modified proposal in cases where an updated proposal differs from the initial one. Please join me in sending a letter to the FCC urging Commissioners to
issue a FNPRM to allow the public to weigh in on this revamped version of the February proposal.

This proposal addresses an important issue for consumers and initiating a FNPRM could help the FCC withstand a potential legal challenge since it does not appear that some of the ideas in the new proposal have undergone public comment as the Administrative
Procedures Act requires.

For more information or to add your name, please contact Anna Hevia in my office at
anna.hevia@mail.house.gov or 202-225-6131.

Sincerely,

TONY CÁRDENAS
Member of Congress

 

Dear Chairman Wheeler and Commissioners,

We are writing to express our concerns with the Commission’s proposed September vote on new set-top box rules and urge the FCC to issue a Further Notice of Proposed Rulemaking (FNPRM). You have heard from more than 200 of our House and Senate colleagues
from both sides of the aisle in response to the February Notice of Proposed Rulemaking (NPRM), communicating concerns expressed by constituents and businesses in our districts. We appreciate your effort to incorporate some of the suggestions you received during
the comment period, however, the most recent proposal being voted on by the Commission is significantly different from the proposal that we had the opportunity to review and comment on.

Since the FCC can use a FNPRM to receive comment on a new or modified proposal, we believe this is appropriate to allow the public to weigh in on this revamped version of the February proposal. This proposal addresses an important issue for consumers and
initiating a FNPRM could help the FCC withstand a potential legal challenge since it does not appear that some of the ideas in the new proposal have undergone public comment as the Administrative Procedures Act requires.

The creation of a standard license with which all device manufacturers, pay-TV providers, and programmers would have to comply strikes at the heart of the way content creators exercise their copyrights, as guaranteed by Section 106 of the Copyright Act.
We are concerned that a standard license would encroach upon the highly competitive and complex licenses carefully negotiated between content creators and pay-TV providers. As you know, these licensing agreements cover much more than the programming itself
and channel placement, but also extend to search, advertising, security protocols, and display of content to the pay-TV subscriber, among other things. We remain particularly mindful that Congress has not granted the FCC with jurisdiction over program licenses
under either the Copyright Act or the Communications Act.

It is difficult to analyze the full scope of the standard license and the FCC’s role in developing and enforcing this license without knowing the full details of the proposal. Commissioners should have the opportunity to place their vote knowing how the
industry will be impacted and it is imperative that any new rules be adopted through a transparent and inclusive process.  For these reasons, we urge that you issue a FNPRM for the most recent proposal to promote competition in the set-top box market.

We appreciate your work and hope that the Commission will continue to embrace transparency throughout this process. As time is of the essence, we look forward to hearing from you soon.

Sincerely,