Cable operators are using the Third Circuit decision in the media ownership rule case to argue the FCC needs to get more input on its program carriage standstill, per Administrative Procedure Act requirements cited by the third Circuit in the just-decided Prometheus case for its ruling vacating an earlier FCC decision on new regs.
That standstill, which would keep networks on systems during the resolution of carriage complaints or "true up" programmers through payments for the time they were not on the system if they win their complaint, is part of a program carriage order that has already been approved by all but Republican Commissioner Robert McDowell, who is expected to vote it soon.
At press time the National Cable & Telecommunications Association was sending a letter to the FCC commisisioners saying that, as a matter of procedure, the standstill should not be adopted without being properly vetted, though with the order already approved by a majority that is a long-shot.
The order is accompanied by a Notice of Proposed Rulemaking on other potential changes to the program carriage rules, and NCTA has been arguing that is the more appropriate place to deal with a standstill.
"After the FCC began to formulate a specific approach to a final standstill rule, NCTA says in its letter, "the public was entitled to a new opportunity to attempt to persuade the Commission. And here, unlike the Prometheus case, there has not even been a newspaper op-ed or press release in which a member of the Commission outlined the substantive proposal that is reportedly being contemplated in the order. Although the NPRM has been pending for over four years, the Commission has never sought comment on any standstill rule."
The cable association says that inadequate notice is not a "harmless procedural error," but deprives the FCC of the evidence needed to make "informed decisions" and has "fueled calls for FCC process reform in Congress."
The House Ernegy & Commerce Committee Oversight subcommittee just last week held a hearing on FCC reform.
The thinking among at least one commissioner who already voted it was said to be that since there is a standstill provision in program access and a standstill was talked about in the NPRM, it was not out of left field.
The Third Circuit remanded the newspaper-broadcast crossownership rule revision to the FCC Thursday (July 7) on procedural rather than substantive grounds, saying that the FCC had failed to provide sufficient opportunity to comment on the change, which was signaled by then FCC Chairman Kevin Martin in an op ed in the New York Times four weeks before the December 2007 vote.