At press time Thursday, no one but FCC chairman Tom Wheeler had voted to approve either the set-top box order or business data services (BDS) combination order and Second Further Notice of Proposed Rulemaking, according to an FCC source speaking on background.
Both items were circulated for commissioner votes and more work in the case of the set-top proposal after not making it onto public meeting final agendas. The set-top proposal was circulated back on Sept. 29 and BDS on Oct. 6. The chairman's "aye" is implicit in his circulating the items for others' approval, so each needs two more votes, likely only from the two Democrats on the panel.
Both the BDS and set-top items got makeovers after pushback from numerous quarters and both were billed as more in line with alternative proposals offered up by NCTA: The Internet & Television Association and others. But in neither case were critics assuaged, arguing the items' apparent pivots—toward app-based and more protective of content and contracts in the case of the set-top proposal and less of an opt-in mandate for privacy in the case of BDS—were deceiving.
The chairman could still add either item to the Oct. 27 meeting for a public vote or push the set-top proposal to the November meeting if it still needs work. The October meeting already has a planned vote on the chairman's proposal on a broadband privacy regulatory framework, another item that has drawn a lot of heat from industry and the Hill.
With many Hill Democrats calling for more transparency on the set-top item, holding a public vote on the set-top proposal would be the more politic course if and when the chairman lines up two more votes for that item.