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McDowell on Program Carriage: Standstill Was Not Sufficiently Vetted

Republican FCC Commissioner Robert McDowell dissented in part from the FCC's just-released order requiring standstills during program carriage complaints, agreeing with cable operators that the FCC did not provide sufficient opportunity for comment per the Administrative Procedures Act.

"The Commission, however, did not provide adequate notice and opportunity for comment under the Administrative Procedure Act (APA). An analysis of a possible standstill framework would benefit significantly from further debate," he wrote in his statement. "Accordingly, I respectfully dissent from this portion of the Order."

While McDowell supports the parts of the order meant to speed the complaint process, including timelines for action and boosting the likelihood that frivolous complaints will be swiftly dismissed, he had big issues with the standstill, issues that helped push his vote to the last minute, in part to give interested parties like cable operators more time to weigh in on the standstill.

McDowell says the lack of adequate notice makes the decision "vulnerable to court remand," a vulnerability he has found in other FCC decisions, including its network neutrality order, from which he dissented.

The National Cable & Telecommunications Association had told the commission in a July 8 letter that it needed to take the recent Prometheus II decision to heart, suggesting that its conclusion that the FCC had insufficiently vetted an ownership rule change also applied to the inclusion of a standstill in the FCC order and should be considered before any program carriage standstill were adopted.

The FCC also issued a Notice of Proposed Rulemaking (NPRM) Friday in association with the order, a place NCTA and McDowell thought was more appropriate to tee up the standstill issue rather than impose it in the order.

McDowell pointed out that the notice deals with questions about the implementation of the standstill. "The majority's insistence in keeping the standstill provisions in the Order is even more perplexing when today's Order is accompanied by a Notice seeking comment on possible revisions to the Commission's program carriage rules," he said. "Curiously, the rules adopting the standstill arrangements appear in the Order, but we then seek comment on several aspects of their actual implementation in the Notice.   With an available vehicle at our disposal, clarity and transparency would be served, with limited delay, by seeking comment on the entirety of the standstill rules and procedures, as opposed to the current approach of dividing the matter between the Order and Notice."

McDowell also agreed that the FCC should have taken Prometheus into account.

"I am disappointed that the majority has failed to consider the recent media ownership decision, Prometheus II, in which the U.S. Court of Appeals for the Third Circuit held that two sentences in a notice of proposed rulemaking that indicated the Commission's intention to revise the cross-ownership rule was too general and open-ended to have fairly notified the public..." He drew the parallel to the program carriage order. "The majority points to one sentence in a 2007 notice requesting comment on whether to adopt rules 'to protect programmers from potential retaliation if they file a complaint,' he wrote. "The majority asserts that the standstill rules are a 'logical outgrowth' of this proposal.  I disagree."

McDowell said he also disagreed with the majority that codifying standstills were rules of agency procedure that did not require notice under the Administrative Procedures Act. "A rule that extends a contractual arrangement and determines the amount of compensation parties will receive after the program carriage dispute is resolved is outside the scope of Commission procedure," he said.