McDowell Votes Against Standstill Rule in Partial Program Carriage Dissent
The FCC didn’t back down on new program carriage rules whose prospect had spurred opposition from major cable operators, agency officials said Friday. They said Chairman Julius Genachowski, the Office of General Counsel and the Media Bureau, the latter of which wrote the order and further rulemaking notice, decided against changing the item to accommodate Commissioner Robert McDowell. His concerns had dovetailed with those of the NCTA and members including Comcast. And in another program carriage case, an independent programmer withdrew allegations that its complaint was dismissed in an atmosphere where FCC officials left to work for the cable industry.
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The concern on the draft program carriage order is on a requirement for such companies to continue carrying independent channels while complaints they were discriminated against on the basis of affiliation over channels owned by operators are pending. The bureau would need to find a prima facie case was made by the indie for such standstill carriage to begin. Genachowski had been expected to stand firm on the order (CD July 13 p3), which agency officials said he’s done.
McDowell decided to issue a partial dissent to the item, and voted on it Friday after getting one extension for the deadline to decide, FCC officials said. Genachowski and the two other FCC Democratic members hadn’t changed their earlier votes for the item, the officials said. They said the order and further rulemaking notice, which first circulated May 3 for a vote, ought to be publicly released this week. A bureau spokeswoman declined to comment for this story, as did McDowell’s office.
Career FCC staffers decided not to move the standstill order to the rulemaking notice, as McDowell had earlier sought, agency officials said. Instead, the staffers working under the auspices of Genachowski beefed up some of the legal language in the order to address the concerns expressed by Comcast and others, they said. The concern is that the commission, in not seeking specific comment on standstill rules in a 2007 rulemaking notice, would violate the Administrative Procedure Act by issuing the rules now. McDowell in an interview last month had said such APA issues should prompt the commission to seek comment on a standstill.
WealthTV, meanwhile, withdrew some allegations in a recent petition for reconsideration (CD July 15 p16) in which the indie channel said the departures of Commissioner Meredith Baker, and aides to other FCC members, from the agency to Comcast, NCTA and Time Warner Cable created an atmosphere hostile to its complaint. WealthTV filed the amended petition Friday afternoon in docket 08-214 (http://xrl.us/bk3jy6). That filing mentioned none of the four former FCC officials that were named in the original petition.
"This amended filing withdraws and retracts arguments dealing with concerns about the role of certain former Commission employees in the decisionmaking process in this case,” the new filing said. “Certain information received in recent days clarified what was left unclear in, among other things, the responses to WealthTV’s” requests under the Freedom of Information Act, the company said. “So that it was determined to not to pursue and retract these arguments.” The information that was retracted wasn’t listed. WealthTV CEO Robert Herring said he’s sticking with the procedural arguments in the petition, just dropping the personnel issues. “I'm willing to drop it all if they want to talk about a settlement,” he told us about defendants Bright House Networks, Comcast, Cox Communications and Time Warner Cable. “But they haven’t been willing to do that so far.”
WealthTV’s original petition was a “transparent attempt to divert attention from an overwhelming record demonstrating” program carriage rules weren’t violated, the four cable operators said in their filing in the docket (http://xrl.us/bk3jzk). “WealthTV does not seriously challenge any of these findings in its Petition. Instead, it first launches a scattershot attack over alleged ‘unresolved ethics concerns.'” The petition “represents the culmination of a long pattern of irresponsible advocacy based on reckless accusations and bizarre conspiracy theories,” the defendants said. “WealthTV now impugns the integrity of the Commission itself by gathering together and attempting to ignite a pile of stray bits of speculation and innuendo pertaining to one former Commissioner, who recused herself from the Commission’s decision, and three former FCC employees, all of whom had left the Commission long before its decision.”