Future of 2008 Lease Access Rules Hazy, With Rollback Possible
Despite some progress in a decade-old fight over the FCC's embattled 2008 leased access rules, there's no clear picture as to what -- if anything -- the agency will do next, with implementation facing big hurdles and some seeing the possibility of the agency instead seeking to roll them back. “I don’t think anybody cares,” said Georgetown Institute for Public Representation lawyer Andy Schwartzman, since the tougher rules former Republican Chairman Kevin Martin tried to put in place never went into effect.
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Schwartzman's now-defunct Media Access Project on behalf of the United Church of Christ in 2008 requested the FCC override an Office of Management and Budget notice blocking implementation of the leased access rules adopted early that year. The Media Bureau last week dismissed the UCC-withdrawn request (see 1804190040).
The OMB notice rejecting those rules is still in effect, as is a 6th U.S. Circuit Court of Appeals stay granted to NCTA (see 0805230149), meaning, for now, the FCC still can't implement the rules, said broadcast attorney Jack Goodman. Minus some party pushing strongly for implementation, that won't happen given what likely would be required -- the FCC adopting a revised rule that again goes through OMB review, he said. In a docket 08-3369 status update (in Pacer) last week with the 6th Circuit, the FCC said the bureau received comments on the UCC proposal that the FCC override the OMB decision but hadn't yet decided how it would respond to the request or the OMB decision. Since the court put the case in abeyance in July 2008, after OMB disapproval of the information disclosure requirements in the rules, the FCC has filed such status reports every 60 days, totaling more than 90.
Goodman said the FCC potentially could repeal those rules, with one route being taking up a petition for reconsideration that was filed in response to the rules. The cable industry didn't seek reconsideration, going to court instead, but the FCC could still try to take up issues on reconsideration that weren't raised in the petition. But it's more likely the rules will remain in the void, Goodman said. "It's not hurting anybody while it's in limbo." The need for leased access has likely diminished, given the increased number of routes over the past decade for alternative distribution, Goodman said.
The UCC withdrawal and dismissal may point to the FCC being "finally ready to abandon once and for all" the leased access rules changes, which would have put a dime-per-subscriber-per-month cap that cable operators could charge for leased access channels and instituted "stringent" customer service and annual reporting requirements on cable operators, Davis Wright lawyers Maria Browne and Steven Horvitz blogged Tuesday. They said the rationale for the leased access rules is questionable given the competitive state of video programming distribution. They said the Communications Act Section 612 sets commercial leased access obligations, but the FCC can set the rates, terms and conditions and could also forebear from enforcing some statutory obligations. They said FCC Chairman Ajit Pai's de-regulatory bent may mean agency action leased access rules in coming months.
A cable industry official said next steps depend on what the FCC does. NCTA didn't comment. Asked about possible next steps, an FCC spokesman acknowledged the agency's 2008 leased access order is subject to pending judicial review and it has an OMB denial of the information collection requirements that were contained in the 2008 order An attorney representing one of the plaintiffs in the 6th Circuit case said it's hard to imagine Pai trying to start up the leased access rules.
UCC dropped its petition as a desk-cleaning measure, said Schwartzman. He said the leased access rules are statutory, so they couldn't be done away with, though they could be modified.