Advocates for minority and low-income groups are researching ways to challenge alleged electronic redlining by cable and telecom operators when they roll out new advanced services such as high-speed Internet in low-income and minority neighborhoods, sources said. Minority Media & Telecom Council (MMTC) will take up issue at March board meeting and will decide whether to mount FCC or court challenge, Exec. Dir. David Honig told us. Civil Rights Forum on Communications Policy (CRFCP) said it was actively seeking ways to raise $25,000-$35,000 to conduct study of electronic redlining in Boston, D.C., N.Y.
U.S. Appeals Court, D.C., struck down FCC’s video description rules, saying Communications Act “does not give the FCC unlimited authority to act as it sees fit with respect to all aspects of television transmissions.” Decision came in Motion Picture Assn. of America v. FCC, case in which MPAA was joined by NAB and NCTA. Writing for majority, Judge Harry Edwards pointed out that Telecom Act added specific mandate for FCC to enact rules for closed- captioning, but not for video description. He said there was “a marked difference” in way Congress treated those 2, but FCC nevertheless adopted rules for both.
Comcast and AT&T called emergency motion trying to stop merger of Comcast and AT&T Broadband “unfounded and irresponsible” and said it “should be dismissed out of hand.” In FCC filing, Comcast Senior Dir.-Public Policy James Coltharp and AT&T Vp-Federal Govt. Affairs Betsy Brady said Media Access Project and its consumer group clients, in their motion, failed “to articulate any substantive basis to refute careful reasoning” of FCC in its order denying them access to AOL Internet Service provider (ISP) agreement (CD Nov 8 p7). Groups filed emergency petition asking FCC to suspend consideration of merger until U.S. Court of Appeals, D.C., had had chance to consider expedited appeal by MAP and others of Commission’s decision to deny them access to ISP deal. FCC concluded in its denial that deal was immaterial and irrelevant to merger. Commission hasn’t made decision on petition and still was reviewing it, spokeswoman said late Fri. Comcast and AT&T said in their filing that MAP’s “shrill but empty assertions plainly afford no basis for further delaying the merger review process.” They also said that, with preparations for closing of merger far advanced, further delays would cause “serious harm” to customers, lenders, shareholders, and employees. Companies asked FCC to dismiss motion in ordering clause in final order on merger and “otherwise disregard it.” MAP Pres. Andrew Schwartzman said his group planned to file motion for expedition with court Nov. 12.
FCC Wed. moved step closer to making final decision on whether to approve proposed merger of AT&T Broadband and Comcast. Commission rejected separate motions filed by Media Access Project (MAP), on behalf of Consumer Federation of America (CFA) and other public interest groups, and Earthlink to gain access to agreement that would give AOL carriage on what would be merged pipe of AT&T Comcast. Comr. Copps dissented, saying he believed MAP and others should have been granted access to documents in question, even if they had to sign protective order.
Media Access Project Pres. Andrew Schwartzman took exception to something Comcast Pres. Brian Roberts told FCC Chmn. Powell in phone call. According to ex parte filing on call, Roberts urged Powell to reject pending motion by consumer groups and Earthlink requesting that FCC examine carriage agreement Comcast and AT&T Broadband reached with AOL Time Warner. Roberts called agreement highly proprietary and confidential and told Powell there was “serious risk” confidentiality could be compromised, even with current Commission procedures to protect such confidential agreements, filing said. “It is an insult to the professionals on the FCC staff and to the lawyers who practice before the Commission to start from the premise that the Commission cannot and will not enforce its rules,” Schwartzman said: “I find it beneath Brian Roberts to make a statement like that in private and we take it as a challenge to our integrity.”
Several labor unions, broadcast guilds and public interest groups asked for at least 4-month delay in Dec. 2 deadline for comments in agency’s omnibus rulemaking into broadcast ownership issues. Group reportedly has been unsuccessful in obtaining raw data used by Commission in 12 economic studies (totaling 800 pages) released Oct. 1, designed to justify combining 6 separate rulemakings (CD Sept 13 p1). Those data could be made available later this week by FCC Media Ownership Working Group, source said. “We're pressing very hard on this thing,” Andrew Schwartzman of Media Access Project told us. Unions and guilds actually are seeking delay until 4 months after information is available, with replies 2 months after that. That would put in jeopardy Commission plans to have new rules in place by late spring (CD June 18 p1). In Mon. filing, Network Affiliated Stations Alliance (NASA) asked for 2-month postponement until Feb. 3, replies March 3, saying it retained economists to examine “relevant issues” involved and that it planned to develop other “empirical data” to support its comments, and more time was needed for that. NASA said FCC waited 11 months after establishing Working Group to release studies and “it seems reasonable” to provide more time for other parties to prepare comments.
FCC staff was taken to task once again by Media Access Project and Earthlink over staff’s decision not to ask AT&T or Comcast for copy of their agreement to carry America Online on systems of what would be their merged company. In meeting with members of FCC’s Office of Gen. Counsel, attorney Earl Comstock, representing Earthlink, said staff’s “deliberate blindness” to broadband arrangements was likely to eliminate all competition in broadband industry, according to ex parte filing. MAP, Consumer Federation of America and other organizations have asked FCC to examine high-speed Internet access agreement, arguing that it was important part of FCC’s review of proposed merger of AT&T Broadband and Comcast. FCC spokeswoman said Fri. that Commission still was considering request that it review agreement. In meeting at FCC, MAP Pres. Andrew Schwartzman emphasized need for written order on request before Commission issues its final decision on merger, even if written order denies motion by MAP, CFA, others. In telephone interview, Schwartzman suggested groups might seek court intervention. In filing, they said written order would “be in everyone’s best interests. It would give CFA a final order, and would give the Commission a reasoned basis for its decision if it needed to defend it.” Comstock said Commission had 5 open proceedings on broadband and it therefore was “impossible” for agency to argue that agreement involving AT&T, Comcast and AOL Time Warner was outside Commission’s scope of review. MAP Assoc. Dir. Harold Feld said Commission might determine after looking at agreement that no action was required, but “it cannot avoid looking at the agreement.” Meanwhile, sources said Media Bureau staff sent its recommendation on proposed AT&T Comcast merger to 8th floor for consideration. As of Fri., merger had been under review 170 days. Commission has imposed 180-day deadline on itself.
Three attorneys arguing appeal of FCC approval of Fox Bcstg. purchase of Chris-Craft TV stations before U.S. Appeals Court, D.C., Fri. had little chance to make their arguments because of repeated interruptions by 2 members of 3-judge panel. After FCC attorney Grey Pash had used up all his allotted minutes, presiding Judge Harry Edwards said: “I'll give you one more second. You're way over your time,” then promptly asked Pash another question. Judge David Tatel joined in with repeated questions and statements, while Judge Raymond Randolph didn’t say word until rebuttal by Angela Campbell, attorney for appellants. Case had been appealed by United Church of Christ and Media Access Project (MAP), who said granting 2-year waiver of newspaper cross-ownership rule (instead of standard 6 months) to Fox parent News Corp. wasn’t in public interest. Campbell, who argued deal shouldn’t have been approved without public hearing, responded “yes” when Tatel suggested “your whole argument is whether the sale was in the public interest.” Edwards said public interest could be “variable, depending on what we're looking at.” Pash said public interest determination came with waiver -- and FCC order explained why. Responded Edwards: “I don’t see how [order] gets you where you want to go” on public interest mandate: “Where is the policy statement on public interest in this case?” Answering his own question, Edwards said it wasn’t there. Fox attorney John Roberts argued FCC had adequately applied and explained public interest in its order and said none of cases cited in support of MAP’s position by Campbell involved broadcast licensees. Edwards called Roberts’s argument “very strange opinion [but] it may be right.” FCC approved Fox purchase of Christ-Craft stations in Aug. 2001, and deal was consummated last Aug. after Fox had swapped TV stations required by FCC to comply with duopoly rule. Following hearing, MAP Pres. Andrew Schwartzman told reporters Commission “should be anxious… There’s a reasonable chance for reversal.”
FCC shouldn’t “rush to judgment” before Justice Dept. (DoJ) completes its review of plan to take over General Motors’ Hughes Electronics and DirecTV, EchoStar said: “There are a many important benefits for consumers at stake.” Facing uphill battle to win approval for $18 billion transaction, EchoStar in ex parte filing Mon. (CD Oct 8 p1) asked Commission to delay decision until DoJ completed its review and to hold en banc hearing or public forum “consistent with practice for complex and important mergers” such as AOL-Time Warner. During AOL-Time Warner merger, FCC waited until DoJ gave its approval before making decision. Commission said it was “reviewing transaction” and set no timetable for acting on EchoStar’s delay request.
EchoStar acquisition of Hughes Electronics and its DirecTV subsidiary threatens to “impede the deployment and ultimate success” of Americom2Home service planned by SES Americom, SES said in letter from attorney Phil Spector to Dept. of Justice (DoJ) and FCC Fri. Unless conditions are imposed, combined company would have “necessary market power and incentive” to prevent Americom2Home from becoming competitive force in DBS arena, SES said. FCC should impose conditions on New EchoStar’s future practices and operation so service of Americom2Home and other potential DBS competitors could develop, SES said. Conditions will be “much more important if there is a merger,” Spector said: “If there isn’t a merger, we would expect both EchoStar and DirecTV to be more willing to welcome competition.”