FCC OGC Johnson Touts Regulatory Humility, Talks Leased Access
A draft order on cable leased access rules set for the June commissioners’ meeting would eliminate requirements that cable companies provide part-time access to leased access programmers and include a Further NPRM on modifying the rate formula, FCC General Counsel Tom Johnson said Wednesday at a Media Institute luncheon. Cable companies have supported eliminating the part-time requirement, while leased access programmers want it preserved (see 1905140059). Along with leased access, Johnson discussed upcoming FCC legal cases and the Office of General Counsel (OGC) under Chairman Ajit Pai.
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“Programmers now have a wide range of options for distributing their content, including a plethora of online platforms, so the need for burdensome leased access rules" has dramatically diminished, Pai blogged Wednesday announcing the agency’s June agenda. It also includes items on robocalls and the aviation radio service (see 1905150053).
The draft order would also vacate a 2008 FCC order on leased access that was never put into effect because of an outstanding legal challenge, Johnson told the luncheon. Since those updated rules were never applied, the leased access rules in effect are a quarter-century old, Johnson said. The internet now provides a wealth of distribution options for programming, obviating the need for the original rules, he said.
The FNPRM that would accompany the draft order proposes modifying the rate formula to make leased access fees closer to the administration fees incurred by cable operators, using a “tiered system,” Johnson said. It would seek comment on whether leased access rules can withstand First Amendment challenges since the video market has changed so much from when the rules were created, Johnson said. “The glaring problem with our leased access rules is that they’ve been in legal limbo for over a decade and haven’t been updated to account for the transformation of the video marketplace,” Pai said in Wednesday’s blog post.
The agency under Pai strives to practice “regulatory humility” because the rapidly changing pace of technology makes it difficult for regulators to predict the lasting effects of their policies, Johnson said. Being Pai’s general counsel is made easier by the number of OGC alumni holding top spots in the FCC at the moment, Johnson said. That includes Pai himself, Pai’s Chief of Staff and former General Counsel Matthew Berry, Commissioner and former General Counsel Brendan Carr, and Pai’s Senior Counsel and former acting General Counsel Nick Degani. That means FCC leadership understands the sorts of issues likely to be raised in court concerning FCC policies, Johnson said.
The commission’s ongoing battle in the 3rd U.S. Circuit Court of Appeals over the 2014 quadrennial broadcast ownership review -- called Prometheus IV -- will be different from the three previous cases -- all FCC losses -- because the agency has complied with the court’s mandate to consider the effects of ownership rules on diversity, Johnson said. Other FCCs have “only gestured” at incubator programs such as the radio incubator program being implemented by the agency, Johnson said.
The agency is following the progress of ongoing Supreme Court cases that could affect future challenges of FCC policies, Johnson said. A decision in Kisor v. Wilkie could overturn Auer deference, which involves bowing to regulatory agencies over ambiguous regulations. The FCC may not be strongly affected by a decision overturning Auer because it doesn’t often rely on informal guidance, Johnson said. “We have a lot of respect for the notice and comment process.” PDR Network v. Carlton & Harris Chiropractic (see 1904250006) could have bigger implications for the agency, Johnson said. He’s “cautiously optimistic” that the court will find that Congress is well within its authority to limit the timing and venue of challenges to agency rules.