A cross-ownership rule remand shows why the FCC shouldn’t require cable operators...

A cross-ownership rule remand shows why the FCC shouldn’t require cable operators to keep distributing independently owned networks, the NCTA said Friday. A day earlier the 3rd U.S. Circuit Court of Appeals threw out rules on common ownership of a daily newspaper and radio or TV station in the same market. The 3rd Circuit said the commission wasn’t specific in a rulemaking notice about the coming rule before approving the media ownership order (CD July 8 p3). The 2-1 ruling in Prometheus Radio Project v. FCC “would apply with equal or greater force in the instant docket were the Commission to adopt a final ’standstill’ rule without seeking further comment,” NCTA Senior Vice President Rick Chessen wrote FCC General Counsel Austin Schlick. The filing in docket 07-42 (http://xrl.us/bkzgue) is about the carriage period that would start when the Media Bureau determines complainants made a prima facie case. “The facts here are more egregious than the facts before the Prometheus court. In Prometheus, there was at least some indication -- albeit brief and open-ended -- that the Commission intended to consider revising the cross-ownership rule at issue. By contrast, the program carriage NPRM in this docket contained no whisper of a potential standstill rule -- no mention of the word or even any general reference to the concept.” A retransmission consent NPRM asking about standstills for subscription-video carriage of TV stations “again highlight[s] that the FCC is perfectly capable of seeking comment on the issue where that is its intent,” Chessen wrote. “Interested parties were prejudiced by the inadequacy of the program carriage NPRM.” He concluded by saying that “inadequate notice is not a harmless procedural error; it is an integral part of proper decision-making and is ignored at an agency’s peril. It not only deprives the public of its right to attempt to persuade the Commission but also deprives the Commission of the evidence it needs to make informed decisions and avoid negative unintended consequences. It has also, in part, fueled calls for FCC process reforms in Congress.” Commissioner Robert McDowell may vote against or concur on program carriage because of potential concerns about adequate notice on the standstill provision in the draft Media Bureau order. All other FCC members have voted for it (CD July 8 p7), an agency official said Friday. A bureau spokeswoman declined to comment. As of Friday afternoon, McDowell hadn’t yet voted on the order and accompanying further rulemaking notice, nor proposed changes to the draft, another agency official said.