McDowell Concerned About Standstill Rule in Draft FCC Cable Order
FCC Commissioner Robert McDowell is concerned about part of draft rules on complaints from independent programmers that they were discriminated against on the basis of affiliation by channels owned by cable operators, said agency and industry officials. NCTA stepped up its lobbying against part of the item, after cable operators expressed concerns earlier. McDowell is said to be concerned about the standstill provision of the draft Media Bureau order. It would require cable operators to continue carrying indies while their complaint is pending and after the bureau determined a prima face case was made.
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There’s a possibility McDowell could vote against the order and further rulemaking notice, or issue a concurrence, said agency and industry officials. They said McDowell hasn’t made a decision yet, and he hasn’t proposed any changes to the item. The item itself hasn’t been changed much from the initial draft that first circulated in early May, agency officials continue to say. They said all other FCC members have voted electronically for the item (CD July 5 p4). A bureau spokeswoman declined to comment.
"We're still examining it,” McDowell said, declining further comment on the item. He’s concerned that adequate notice may not have been given in a rulemaking four years earlier that such a rule could be adopted, other agency and industry officials said. They said McDowell may consider requesting the standstill be moved from the order to an accompanying further notice. Cable operators continue seeking such a move, and other commissioners considered it but decided the move wasn’t necessary, agency and industry officials have said.
The NCTA laid out an extensive case for why the FCC shouldn’t require standstill carriage of independent channels while complaints are pending. Another filing in docket 07-42 showed Verizon executives lobbied an aide to McDowell on Tuesday against part of the draft program carriage further rulemaking notice. The telco said it’s worried the agency may seek to expand the rules to let indies allege discrimination by pay-TV providers who favor a network owned by another multichannel video programming distributor. “This proposed change in the rules -- assuming tacit collusion among all MVPDs -- would be unlawful and inappropriate, particularly as applied to a competitive provider like Verizon,” the company said (http://xrl.us/bkzcim).
It’s “undisputed” that a 2007 rulemaking on program carriage “failed to provide any express notice” that the regulator was considering a standstill rule, the NCTA said. The Media Access Project (MAP) is wrong to contend the rule is a “logical outgrowth” of that notice, the association said (http://xrl.us/bkzcio). Its seven-page ex parte filing posted in the docket Thursday reported on a meeting six days earlier with FCC General Counsel Austin Schlick and others in his office and the Media Bureau. It also included comments not made in the meeting, against a more expansive interpretation of Section 616 of the Communications Act to seek to expand program carriage rules, as MAP asked the commission to consider doing.
"The argument that a standstill rule is a ‘logical outgrowth’ of a potential rule against retaliation cannot meet” the Administrative Procedure Act’s standard, NCTA recounted its executives saying during the meeting. “A rule against retaliation is thus intended to give parties the assurance that they will not be punished for taking advantage of the FCC’s complaint process; unlike a potential standstill rule, it has nothing to do with preserving the status quo in light of business disputes or behavior occurring before a complaint is filed.” MAP continues to think the standstill rule fits the logical outgrowth test, Senior Vice President Andrew Schwartzman told us. “As to the question of applying the rule more broadly to networks owned by other MVPD’s, it is very significant that the statute bans discrimination against programmers based on ‘affiliation’ with MVPD’s and not ‘ownership’ of MVPD’s,” he said of Section 616.
The cable association cited last year’s ruling by the 3rd U.S. Circuit Court of Appeals in Council Tree v. FCC, as Comcast did. A rulemaking notice on program access issued several months after the program carriage item asked about standstill provisions “explicitly and at length,” showing the agency “knew how to ask about a potential standstill requirement where that was its intent,” the NCTA said. Section 624(f) could also be violated by a standstill program carriage rule, although the FCC doesn’t need to “resolve the meaning or application” of that section now, the group said. “The point here is that it is a significant issue and that there is little or no record on which the Commission could base a decision.”