While the latest iteration of FCC Chairman Tom Wheeler's set-top proposal is said to have backed off the FCC's explicit role in backstopping app licenses to make sure they are reasonable and not anticompetitive, that does not appear to be enough for programmers.
According to various sources, the proposal also has included a complaint process by which the FCC could review issues with the app licenses.
According to an ex parte letter to the FCC, programmers made it clear that if the FCC were in any way involved, they could not support the item.
Yes, outside parties are not allowed to reach out to FCC staffers to press their cases in the seven days before a vote on an item -- set-tops is scheduled for tomorrow's public meeting -- but it was an FCC staffer from the office of Commissioner Jessica Rosenworcel reaching out to programmers for clarification, according to the letter.
Rosenworcel's vote is key and she also has issues with the proposed licensing regime.
Representatives of Time Warner, Disney, Scripps. CBS, Viacom, and 21st Century Fox told Rosenworcel's aide said the staffer asked to clarify the extent of their concerns, and the programmers signaled that extent was, well, extensive.
They reiterated that the FCC should not exercise any oversight or review of the terms and conditions of any license that result in content being distributed to devices or online platforms.
But just to be clear, they said that included "commission or bureau-level review of third party license terms for any reason, to any adjudication or complaint processes governing the third-party license, and to any advance proscriptions of the terms that would be permitted to be included in the license negotiated by MVPDs and programmers."
And just in case that was not clear, they got clearer: "Any involvement of any type by the FCC or any party other than MVPDs and programmers that would affect (through oversight, review, enforcement or other action) the terms and conditions of the license is legally and practically untenable."