Local Governments Ask Court to Stay FCC Ruling on Video Franchising
Local government and nonprofit organizations from around the country today asked a federal appeals court to block, pending judicial review, implementation of the recent franchising order adopted by the Federal Communications Commission (FCC), which may otherwise go fully into effect in the next several weeks. The organizations assert that the FCC Order will severely restrict the ability of local governments to protect their citizens, rights-of-way, community channels and public safety networks. The organizations assert that the request for Stay is in the public interest since, among other things, under the FCC Order, “local franchising authorities will be forced to rush franchising decisions without being given an opportunity to ensure the interests of the public, including safety concerns, are met.”
According to the Motion for Stay filed today in the Sixth Circuit Court of Appeals, “The ‘Alice in Wonderland’-like quality of the Order, where up is down and down is up, is readily apparent.” For example, in the Order the FCC created an arbitrary 90-day shot-clock for local governments to negotiate, review, obtain public comment and enact new franchise agreements even though Congress, under the Communications Act, gives local governments longer periods to complete more straightforward tasks, such as approving transfers or modification requests. The organizations are also concerned that the Order will accelerate the widening of the digital divide, and result in a “race to the bottom, with local governments stripped of their authority to ensure that the public interest is protected.”
The organizations participating in today’s Motion for Stay include the Alliance for Communications Democracy (ACD), Alliance for Community Media (ACM), National Association of Counties (NACo), National League of Cities (NLC), National Association of Telecommunications Officers and Advisors (NATOA), and The United States Conference of Mayors (USCM).
Additionally, the organizations contend that if implemented without a court’s review, the FCC Order will cause irreparable harm to local communities and the citizens they serve, because among other things, the Order preempts important local laws and agreements, and undermines the ability of local governments to protect their citizens. Congress has long established that local franchising authorities have the right to negotiate franchise agreements that meet the communities’ needs and interests since they contain provisions for community resources, including public, educational, and government access channel capacity, programming support, and access to the services by schools, libraries, police and fire departments throughout our communities.
The organizations filed Petitions for Review of the FCC Order in April 2007, stating that the Order “exceeds the FCC’s statutory authority, is arbitrary and capricious,” and “an abuse of discretion, unsupported by substantial evidence, and in violation of the United States Constitution.” The Order also “violates both the Communications Act and Administrative Procedure Act’s public notice requirements,” according to the Petitioners.
Those Petitions are now pending action in the United States Court of Appeals for the Sixth Circuit.