FCC Chmn. Powell’s legal adviser on media issues, Susan Eid, told Precursor Group conference Tues. that reality was that there were unprecedented levels of competition, diversity and choice in broadcast TV market. Prime-time viewing of broadcast has declined more than 30% in last decade because of competition from cable, she said. Cable captures 20% of ad revenue now, she said, and she believes clustering of cable systems will cause that industry to “compete much more aggressively and, frankly, effectively” with local broadcasters in terms of local content and advertising.

U.S. Appeals Court, D.C., put challenge by consumer groups to merger of AT&T Broadband and Comcast on its own version of “rocket docket,” issuing order late Mon. granting motion by Media Access Project (MAP) to expedite case. MAP, acting on behalf of Consumer Federation of America, Consumers Union and Center for Digital Democracy, technically is challenging FCC, not companies themselves, in 2 separate but related cases. For purposes of efficiency, court has put 2 cases together in same docket. Court’s decision to expedite case doesn’t in any way go to heart of MAP’s arguments or whether they have merit, just that case warrants speedy attention.

At our deadline, U.S. Appeals Court, D.C., granted request by Media Access Project (MAP) for expedited review of MAP’s appeal of 2 FCC decisions -- first and foremost, FCC’s decision to allow Comcast and AT&T Broadband to merge, and 2nd, FCC’s decision denying MAP and public interest groups access to Internet service provider deal that ISP companies made with AOL. MAP Pres. Andrew Schwartzman said briefs would be submitted over next 2 months and cases would be heard together, probably in court’s spring session. Comcast spokesman didn’t immediately comment.

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.