The Senate began debating media ownership rules Thurs. as it prepared for a Mon. vote on whether to enact a “legislative veto” of the FCC’s controversial media ownership rules, although there were reports the Senate might cancel the vote Mon. Senate Commerce Committee Chmn. McCain (R- Ariz.) declared he was against the attempt by Sen. Dorgan (D- N.D.) to use the Congressional Review Act (CRA) to overturn the new ownership rules. And Sen. Breaux (D-La.) said he expected more debate on S.J. Res.-17 before the vote as Thurs.’s debate featured primarily speeches in which members reiterated points made in several recent Commerce Committee hearings on media ownership. Dorgan has said he expects the “resolution of disapproval” to pass, but doesn’t foresee the House as taking action.
Notable CROSS rulings
With an eye on speeding the rollout of wireless services in rural areas, the FCC unanimously adopted a proposed rulemaking Wed. with a wide range of possible changes, asking how to make unused spectrum available to new users and provide access to capital and equipment. The proposal also raised the possibility of allowing wireless operations with higher power levels to enter less densely populated rural areas. It tentatively concluded the cellular cross-interest rule should remain in rural service areas (RSAs) with 3 or fewer competitors, but would remove the limit in other RSAs.
The Senate could vote on a “legislative veto” of the FCC’s controversial media ownership rules as early as today (Sept. 8), although there was some dispute Fri. on when it would be scheduled. A source said the vote would be scheduled Mon. and predicted the measure would pass. However, a spokesman for Sen. Dorgan (D-N.D.) said the vote still hadn’t been scheduled and could come up later in the week or next week. A Dorgan spokesman said discussion Fri. between Dorgan and Senate leadership were leaning toward a Mon. vote, but one wasn’t scheduled.
The Senate Appropriations Committee voted Thurs. to add a 35% broadcast ownership cap amendment to the Commerce Justice State (CJS) appropriations bill with almost no debate, except that Sen. Brownback (R-Ka.) was noted as opposing the amendment. Senate Appropriations Chmn. Stevens (R-Alaska) said the amendment was identical to the 35% broadcast ownership cap amendment added in July to the House version of the CJS appropriations bill. Sen. Dorgan (D-N.D.) said he would introduce on the Senate floor an amendment to restore the FCC’s cross ownership caps. Stevens said he would oppose that amendment in light of the Wed. decision by the 3rd U.S. Appeals Court staying the FCC’s media ownership rules (CD Sept 4 p1). Stevens said the 35% cap amendment was needed to bring the Senate bill in line with the House measure to accelerate its passage. Sen. Landrieu (D-La.) successfully added the so-called Northpoint amendment to the appropriations bill. It would allow Northpoint access to the 22.2-22.7 GHz band without going through a FCC auction. The measure passed on voice vote despite the objections of Sen. Hollings (D-S.C.). Sources said the bill also included report language on local number portability requirements. They said the language wouldn’t delay the Nov. 24 deadline.
Sen. Dorgan (D-N.D.) said he still was negotiating with the Senate leadership on scheduling a vote on a “legislative veto” of the FCC’s media ownership rules. However, he said he was hopeful that S. Res.-17, which would overturn the FCC’s rules, could be scheduled for a floor vote next week. The Senate Appropriations Committee scheduled a markup at 2 p.m. today (Thurs.) that will include the Commerce Justice State (CJS) appropriations bill. Both Senate Appropriations Chmn. Stevens (R-Alaska) and CJS Subcommittee ranking Democrat Hollings (S.C.) have said they would consider adding media ownership amendments. A bill co-sponsored by Stevens and Hollings, S-1046, added another co-sponsor Tues. when Sen. Chafee (R-R.I.) became the 45th senator to sign onto the bill that would return the broadcast ownership cap to 35%. The bill, already approved by the Commerce Committee, was amended to include a cross-ownership cap for many markets.
The FCC’s new media ownership rules will face their first legal challenge this week when the public interest law firm Media Access Project (MAP) will ask the 3rd U.S. Appeals Court, Philadelphia, to at least temporarily block the rules from taking effect Sept. 4. Acting on behalf of the Prometheus Radio Project, MAP will argue Wed. that the court should grant a temporary stay while it considers the merits of legal challenges to the FCC’s rules. The Commission will argue that the court should deny the stay because MAP and its supporters have failed to show that not granting a stay would cause irreparable harm and that they aren’t likely to succeed in overturning the rules on the merits of their case.
The N. American Submarine Cable Assn. (NASCA) said it supported the new rules on underwater cable corridors adopted earlier this week (CD Aug 27 p7) by Fla. Gov. Jeb Bush (R) and his Cabinet. Under the new plan, telecom companies laying fiber cable in one of the 5 identified corridors off the coast of Broward and Palm Beach counties will be eligible for an expedited approval process by the Fla. Dept. of Environmental Protection (DEP), while those wanting to go outside the designated gaps in the reefs will have to get approval from the Cabinet. NASCA, which represents companies such as AT&T, MCI and Global Crossing, said it was “wise” of the DEP and the Cabinet “to use a reasonable incentive-based approach, rather than to restrict new projects to government- designated areas.” It said Fla.’s existing permit system “already works well to protect hard-bottom areas, and NASCA’s member companies have been very successful in minimizing adverse impacts when installing new cables there.” It said the new approach would “create appropriate incentives and help minimize adverse impacts to hard-bottom areas, while preserving necessary flexibility for siting of future projects.”
Fla. Gov. Jeb Bush (R) and his Cabinet unanimously approved Tues. a long-awaited plan designed to encourage telecom companies to safeguard coral reef systems by using designated gaps in the reefs to install and connect cables to information networks in S. America and the Caribbean. The new guidelines were developed by the Fla. Dept. of Environmental Protection (DEP) following a request by Bush and his Cabinet in Dec. The rule will go into effect 20 days after filing with the Dept. of State.
Broadband-over-power line (BPL) providers shouldn’t be classified as CLECs as long as they or their affiliates don’t offer local exchange services, the Mich. PSC told the FCC. In reply comments on the FCC’s BPL inquiry, the PSC pointed out that Qwest and Verizon wanted all broadband providers to be treated equally but Qwest was concerned that if BPL providers were considered only as CLECs, they wouldn’t be obliged to make pole attachments available to ILECs. The PSC said that if BPL companies did provide basic local exchange services, they should be classified as CLECs and required to make available poles at reasonable rates, terms and conditions. Referring to concerns raised by some commentators over the potential for cross-subsidization by utilities to provide BPL services resulting in electric ratepayers’ ending up funding the broadband network, the Mich. agency said state commissions should be empowered to deal with such issues “since they have ample authority over both industries (electric and communications) and thus are better qualified to act.” In Mich., the PSC said, facilities-based broadband providers were governed by the Metropolitan Extension Telecom Rights-of-Way Oversight Act and BPL providers would be covered under that statute. It said the Mich. Broadband Development Authority Act had provisions for financing broadband providers and BPL companies could take advantage of the incentives. On interference issues, the PSC said the FCC should rely on extensive field testing by independent parties rather than those of telecom and power industries. The Central States VHF Society (CSVHFS), urging the Commission not to authorize the deployment of BPL, said it agreed with the American Radio Relay League and other commentators that BPL was a major threat to all users of the RF spectrum. “Once BPL is authorized for operational use, we are certain there would be great difficulty monitoring, controlling, enforcing and possibly terminating its use, no matter what it does to the public safety systems, homeland security systems, DoD missile defense systems and intelligence community users,” it said. The Institute of Electronic & Electrical Engineers (IEEE) said that, based on comments submitted to the Commission, Part 15 rules didn’t require any technical rule change to specifically accommodate BPL emissions because commentators for and against BPL described no reports of harmful interference during trials. All comments were based on potential for interference, it said. It also said no changes were needed for equipment certification.
Media Access Project asked the 3rd U.S. Appeals Court, Philadelphia, to overturn the FCC’s media ownership rules. MAP’s appeal, filed on behalf of the Philadelphia-based Prometheus Radio Project, also asked the court to delay the effectiveness of the FCC’s decision until the judicial review was complete. Absent such a stay, the new rules become effective Sept. 4. NAB filed an appeal in the D.C. Circuit, so MAP’s filing sets up a lottery whereby all the appeals will be heard before one court. MAP argued that, given the likelihood that Congress would overturn all or part of the order, Prometheus would incur “irreparable harm” without a stay. It said that without a stay, “massive consolidation” would happen before court action was finished. MAP called the order arbitrary and capricious and said the agency had failed to analyze how its new cross-media limit would affect competition in the market for local news. MAP also charged that the order had “glaring” inconsistencies, among them that it counted UHF stations differently for purposes of national TV limits and local limits, and that the FCC’s decision to count noncommercial radio stations effectively raised limits in radio, too. The FCC’s decision to use bright line rules while refusing to consider challenges to transfers in compliance with the rules violates the Communications Act, MAP said. Finally, it said, the FCC failed to provide adequate public notice under the Administrative Procedure Act.