from: Telecom Web [1]

Joint Motion Seeks A Delay Of Video-Franchise Order

Local government and nonprofits have asked a federal appeals court to block, pending judicial review, implementation of the recent franchising order adopted by the Federal Communications Commission (FCC) that's scheduled to go into effect in the next several weeks (TelecomWeb news break, March 6).

Signatories include the Alliance for Communications Democracy, the Alliance for Community Media, the National Association of Counties, the National League of Cities, the National Association of Telecommunications Officers and Advisors and The United States Conference of Mayors.

The organizations assert the FCC Order "will severely restrict the ability of local governments to protect their citizens, rights-of-way, community channels and public safety networks." In addition, they say the request for stay is in the public interest because, among other things, under the FCC order, "local franchising authorities will be forced to rush franchising decisions without being given an opportunity to ensure the interests of the public, including safety concerns, are met."

The Joint Motion for Stay, filed in the U.S. Court of Appeals for the Sixth Circuit, also says, "The 'Alice in Wonderland'-like quality of the Order, where up is down and down is up, is readily apparent." For example, in the Order the FCC created an arbitrary 90-day shot-clock for local governments to negotiate, review, obtain public comment and enact new franchise agreements even though Congress, under the Communications Act, gives local governments longer periods to complete more straightforward tasks, such as approving transfers or modification requests. The organizations are also concerned that the Order will accelerate the widening of the digital divide, and result in a "race to the bottom, with local governments stripped of their authority to ensure that the public interest is protected."

Additionally, the organizations contend that if implemented without a court's review, the order will cause "irreparable harm" to local communities and the citizens they serve, because among other things, the groups believe the order preempts important local laws and agreements, and undermines the ability of local governments to protect their citizens. "Congress has long established that local franchising authorities have the right to negotiate franchise agreements that meet the communities' needs and interests since they contain provisions for community resources, including public, educational, and government access channel capacity, programming support, and access to the services by schools, libraries, police and fire departments throughout our communities," they explain.

The organizations filed petitions for review regarding this order in April, stating the order "exceeds the FCC's statutory authority," is "arbitrary and capricious," and "an abuse of discretion, unsupported by substantial evidence, and in violation of the United States Constitution." The order also "violates both the Communications Act and Administrative Procedure Act's public notice requirements," according to the Petitioners. Those petitions also are pending action in the U.S. Court of Appeals for the Sixth Circuit.