Program Carriage Order Changes Unlikely to be Pursued by Genachowski

Pending program carriage rules seem unlikely to be rewritten by career FCC staffers at the behest of Chairman Julius Genachowski after a court ruling in a media ownership case tossing out a regulation because adequate public notice wasn’t given about the potential for that rule, agency officials said Tuesday. The 3rd U.S. Circuit Court of Appeals’ 2-1 decision last week in Prometheus Radio Project v. FCC does have import for program carriage, the NCTA has said. Cable operators have contended previously that adequate notice wasn’t provided in a 2007 rulemaking.

Commissioner Robert McDowell is the only FCC member to think the regulator may not have given adequate notice about standstill rules requiring continued distribution by cable operators of independent channels with program carriage complaints pending (CD July 8 p3). He hasn’t yet voted on an order containing those rules, which all other commissioners have approved, agency and industry officials said. They said he also hasn’t proposed any changes to the item. McDowell’s office had no comment.

Chairman Julius Genachowski said he doesn’t “know that that decision will have an effect on our program carriage rules.” The response came to our question about Prometheus at a news briefing. “We obviously are looking at program carriage and there are various things underway.” Bureau Chief Bill Lake also said “we don’t see any immediate impact on our proposed update of program carriage rules” of the Prometheus ruling on cross-ownership of a daily newspaper and radio or TV station by one company in the same market. “And if any party sees any impact, they are welcome to point it out in comments” on program carriage, Lake said in response to our question. The order has an accompanying further notice. NCTA and some members want to commission to seek comment on a standstill in the further notice, instead of enacting rules in the order.

Some career FCC staffers so far appear to feel there’s no need to revise the draft program carriage order because of Prometheus or cable operator concerns that predate the ruling, agency and industry officials watching the proceeding said. They said that group apparently includes staffers in the bureau, which wrote the pending order and further notice, and the Office of General Counsel. NCTA said Friday that the notice didn’t seek comment on a standstill requirement for independent channels to have continued cable operator distribution after the bureau determines a program carriage complaint made a prima facie case. A bureau spokeswoman declined to comment.

FCC staffers are reviewing the Prometheus 3rd Circuit remand of cross-ownership and diversity rules to see how the current media ownership review can address it, agency officials said. The bureau appears to be trying to determine how to account for the decision in a forthcoming rulemaking notice on the current review, which was due to be finished last year, a commission official watching the proceeding said. The 3rd Circuit ordered the commission to address the ruling’s concerns in the current review. Lake and FCC General Counsel Austin Schlick are analyzing “the process we already have ongoing” on the 2010 quadrennial ownership review in light of the 3rd Circuit’s ruling, Genachowski said. “Obviously, we'll take into account the court’s decision as we go through our process.” He noted that the 3rd Circuit upheld many other media ownership rules from the 2006 quadrennial review approved a year later by the agency.