McDowell Seen Voting Against Part of Program Carriage Order if it’s Not Changed
FCC Commissioner Robert McDowell likely will vote against part of a program carriage order if changes aren’t made to a draft that’s been approved by all his colleagues, agency and industry officials said last week. They said he continues to have concerns about the Media Bureau order to require cable operators to keep carrying independent networks while indies’ complaints against the companies are pending. The order circulated May 3 by Chairman Julius Genachowski and approved by him and the other two FCC Democrats would require standstill carriage. It would begin once the bureau finds an indie made a prima facie case that a distributor gave less favorable carriage to it than to an operator-affiliated channel (CD July 13 p3.)
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McDowell shares some of the concerns of Comcast and other major cable operators, agency and industry officials said. The NCTA and some members contend the regulator would violate the Administrative Procedure Act (APA) by enacting standstill rules without having specifically sought comment on it in a 2007 rulemaking. McDowell also fears that may be the case, agency officials said. He had earlier asked with no success to have the standstill provision removed from the draft order and to instead put it in an accompanying further rulemaking notice, they said. A bureau spokeswoman declined to comment.
If the standstill section isn’t moved from the order, McDowell likely will dissent from that part of the document, agency officials said. Under an extension he received, the Republican FCC member doesn’t need to vote on the item until this week, agency officials said. Especially given last month’s appellate court ruling against some media ownership rules on the grounds that comment wasn’t properly sought under APA before they were approved, McDowell is concerned that the program carriage order could meet a similar judicial fate, an agency official said. Independent cable channels and nonprofit groups seeking expanded program carriage rules have said comment was appropriately solicited on a standstill provision (CD July 5 p4).
"I'm concerned that the standstill provision was not given adequate opportunity for public comment, and that could weaken the commission’s case should this order be appealed,” McDowell said in a brief interview Friday. “I think it’s reasonable to suggest that the standstill idea be put into a further notice.” McDowell has concerns on the standstill rule on both potential APA and policy grounds, he said. “The substantive debate could be carried out in the course of the public comment period,” McDowell said. “We've been trying to work on ideas for a possible compromise,” he said of why he hasn’t voted for or against the item.
FCC officials working on the draft order and further rulemaking under the auspices of Genachowski haven’t been willing to make the change McDowell had sought, industry and agency officials said. That includes staff in the Office of General Counsel, they said. Those and other staff believe the rulemaking four years ago on program carriage did set up the issue to be dealt with in an order, agency officials said. An FCC official said it’s still possible a compromise between industry, McDowell’s office and Genachowski could be reached, if a new proposal surfaces. For now, another official said it appears McDowell will vote against the item and the standstill provision won’t be changed.