NCTA Shocked — SHOCKED! — to Discover Ex Parte Process At FCC.

Every now and then, I am reminded that the cable news networks such as Fox and MSNBC are members of NCTA. But seeing this recent blog post reminded me. While faux outrage and hypocrisy are hardly rare in Policyland, you rarely find this level of self-righteous sanctimony outside of cable news.


As some folks may recall, I recently opined that AT&T choosing to sulk like Achilles in his tent rather than engage meaningfully in the ongoing rulemaking process. NCTA — which also opposes the BDS proceeding and has adopted the same strategy of acting like a disappointed 6 year old — chooses to deliberately misconstrue this as something other than the FCC’s standard, open ex parte process. What magnifies this almost to the level of self-parody is that NCTA is engaged in exactly this behavior on set-top boxes (STBs), where it has popped out with a sudden alternative #ditchthebox to the FCC’s #unlockthebox proposal.


In all cases, of course, NCTA paradoxically insists that any refusal to negotiate around their proposals is somehow a sign that the FCC has impermissibly pre-decided. But if the FCC considers anyone else’s response to their proposals, or engages with stakeholders outside of the comment and/or reply comment period, it is a “smoke filled room.”


Mind you, hypocrisy and faux outrage are pretty standard stock in trade for NCTA, as I’ve noted before. But for those who don’t follow how the Sausage Gets Made here in Telecomland, I provide a review of the relevant process below. For the tl;dr version. Let me just quote NCTA’s own blog post:


“First, it’s jaw-droppingly hard to conceive that an advocate who has consistently complained about the “ILEC monopoly” in the BDS market for more than a decade would suggest that the biggest ILEC should join the second biggest ILEC in negotiating a regulatory regime that raises obstacles to emerging competitors.”


I couldn’t have said it better myself. It is rather jaw droppingly hard to conceive that I have suddenly abandoned all principles and advocacy of the last 15 years to behave as NCTA suggests. That ought to suggest to folk genuinely interested that NCTA has chosen to knowingly and willfully utterly misinterpreted what I said. Likewise, it is rather “jaw-droppingly” obvious that NCTA has no more interest in promoting transparency than it does in letting go of its monopoly control over set-top boxes.


A bit more about how FCC processes actually work, and what I meant (and continue to mean) when I call on stakeholders and the public to continue to actively engage, below . . . .

For those who don’t understand how the FCC’s rulemaking process goes, it works like this. The FCC issues a Notice of Proposed Rulemaking (NPRM). That can contain anything from a set of specific rule texts to a more general “we think that the Communications Act and the public interest requires us to do X. We generally think doing X means rules that require or forbid certain things. We seek comment on these things, or otherwise to achieve X.” The FCC has official comment and reply comments. It also designates a proceeding as “permit but disclose,” That means you can come in and talk to FCC staff as long as you file a written summary of the conversation (a “notice of oral ex parte presentation,” or just an “ex parte“). This allows FCC staff, and stakeholders following the public docket, to engage in back and forth discussion, refine the record, and float possibly consensus based solutions.


The process of course is not perfect. And it does favor insiders who have regular presence and representation in Washington. On the flip side, the alternatives are either to simply make decisions on two rounds of comments (which doesn’t allow the FCC to dig down much on the issues), or to go back to “formal” rulemaking based on holding a hearing and taking evidence under oath. This would, of course, be much more expensive and Congress would have to increase the FCC’s budget considerably.


Sure, the FCC could just decide everything by enforcement and adjudication. But that produces endless whining by the incumbents that they want real enforceable rules. Guidelines just won’t do. In fact, to hear the non-stop complaining, guidelines are somehow even worse than actual rules.



The observant may notice a pattern emerges rather quickly. If the FCC uses a rulemaking process, the industry complains relentlessly about the conduct of the rulemaking.

1. Don’t do a notice of proposed rulemaking!

2. If the FCC does use an NPRM, don’t ask such detailed questions, because asking detailed questions makes things too confusing.

3. But if you don’t ask enough detailed questions, then you clearly aren’t getting enough detail to make a real decision.

4. Giving too many details about the FCC’s proposal shows the FCC is predecided.

5. Not giving enough details about the proposal is “hiding the ball” and shows the FCC is predecided.

6. If the FCC proposes specific rules, industry will complain that the FCC should use general principles and adjudication rather than detailed rules because detailed rules are so prescriptive the FCC will stifle innovation and flexibility.

7. If the FCC proposes to use general principles and adjudication, the industry will complain that the principles are so vague that there is no way they can figure it out and the FCC will paralyze the industry with uncertainty and thus stifle innovation and flexibility.

8. And, of course, the FCC is always going too fast or too slow, it is either predecided or doesn’t know what it’s doing. And it is either too soon to regulate or too late to regulate.


Anyone paying attention will recognize this for what it is. We generally call it in sports “working the ref.” And no one does this better than the cable industry, which has been on a non-stop whinefest for the last few years. They hate all regulation, except, of course, retrans, which they are now upset the FCC won’t do anything about.


For those of us with long memories, you may remember this back from when Kevin Martin was chair of the FCC and was doing his best to try to break cable market power back in the mid-00s? The cable operators played the same game of complaining endlessly about process and how Kevin Martin was a big meany who just totally hated cable and loved phone companies, so there! As the observant may also have noticed, blocking Kevin Martin’s efforts to break cable market power resulted in another decade of price increases higher than inflation, a continued lock on the set-top box (resulting in $22 billion in overcharges to consumers), and general innovation squashing behavior.


So to conclude, y’all will forgive me when NCTA comes out of the gate once again with its tired strategy of playing the helpless victim and pretending it doesn’t understand how FCC processes work or what I eman when I talk about engaging in the process. NCTA can hardly complain about “smoke filled rooms” when it smells like a goddamned ash tray and the cable guys know damn well I’m talking about the usual process of open engagement.


It’s gonna be another long summer. *Sigh*


Stay tuned . . . .


  1. Giving too many details about the FCC’s proposal shows the FCC is predecided. 100% true 🙂

  2. This kind of corruption ought to be prosecuted vigorously – or at least publicly shamed.

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