Rosenworcel, Clyburn Explain Effective Competition Dissents

Say broad application went too far
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The FCC's vote to reverse its rebuttable presumption that cable operators are not subject to competition came with two dissents. That is not unusual, but what was was that they came from two Democratic commissioners who had to break from the chairman in applying that to all cable operators rather than just small ones.

Without the two Republican votes, the item's broad application, the principle bone of contention between cable and broadcast operators lined up on etiheer side, would have been defeated.

For both dissenters, Commissioners Jessica Rosenworcel and Mignon Clyburn, the issue was the statutory language in Congress' mandate that the FCC do something to streamline the process.

"The title of the Satellite Television Extension and Localism Act Reauthorization Act of 2014 may be complicated, but the direction Congress provided in this legislation is clear," said Rosenworcel. "In Section 111, Congress charged the Commission with establishing “a streamlined process for filing . . . effective competition petition[s] for small cable operators[.]” To the extent that we do so here, this Order has my support." But that's as far as she was willing to go.

"[T]he Commission inexplicably races past this straightforward statutory directive and instead provides all cable operators from the biggest to the smallest with an expedited process to avoid oversight," she said. "This is contrary to what Congress asked us to do, at odds with the ecommendation of the Commission’s own Intergovernmental AdvisoryCommittee, and provides no clear benefit to consumers. Consequently, to the extent that the Commission acts beyond the direction of Congress in Section 111, I dissent."

Commissioner Mignon Clyburn shared that sentiment. While she could agree to steps to reduce the impact on small cable providers, she could not support its broad application.

"Based on the plain reading of the statute," she said, "such broad relief goes beyond what is necessary to effectuate Congress’ intent. Moreover, the record raises significant questions as to the possibility of unintended consequences based on the solution proposed here (i.e. that a universal presumption of effective competition could lead to an increase

in cable rates). I cannot support relief to larger providers particularly when doing so could harm consumers and unnecessarily increases the burdens on our local franchising authorities."

Chairman Wheeler said in his statement that cable rates actually went down in markets where cable ops have been deemed to be subject to effective competition.

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