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Regulators Fight FCC’s 90-Day Shot Clock

Local regulators across the country challenged the Federal Communications Commission’s so-called “90-day shot clock,” calling it an abuse of power, and the agency’s latest order clarifying its application of the rule has also been appealed in court.

The FCC released a Second Report and Order on Nov. 6, which detailed what franchising rules in the March 5 First Report and Order should also apply to incumbent cable TV operators.

For instance, the latest order states that the 90-day time frame does not apply to incumbents at the time of refranchising because as a current operator, a company can continue to deliver service even if negotiations run long. Therefore, prolonged talks are not a barrier to the provision of service.

But Montgomery County, MD., on behalf of other challengers of the FCC rules on franchising, appealed the latest order in the U.S. Court of Appeals for the Fourth Circuit on Dec. 6. The county’s appeal asserts that the most recent order “exceeds the FCC’s statutory authority, is arbitrary and capricious and violates the Fifth and Tenth Amendments to the U.S. Constitution,” among other legal claims.

These are similar to the abuse of regulatory discretion claims made in the challenge to the original, March 5, franchising order. That legal challenge is still pending before the U.S. Court of Appeals for the Sixth District.