FCC Says Its Program Carriage Rules are Consistent With Statute, Constitution and APA
The FCC’s recent revision of its program carriage rules was consistent with the First Amendment, the Cable Act and the Administrative Procedure Act (APA), attorneys for the commission said in a brief filed this week with U.S. Court of Appeals for the D.C. Circuit (http://xrl.us/bnc4pn). The commission is defending the rules against a petition from the NCTA and Time Warner Cable.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
Those parties asked the court for more time to file a reply brief by moving the current July 10 deadline to July 31. The extension would give other parties time to complete their amicus briefs, NCTA and TWC said in a motion filed with the court. “Several entities have contacted counsel for petitioners to request consent to file such amicus briefs,” which would be due even sooner than July 10, they said. “Responding to the arguments that such amici will raise -- in addition to respondents’ arguments in a complex, consolidated matter involving a large administrative record -- will require significantly more time than the default deadline would permit,” they said.
The FCC’s 2011 program carriage order is subject to intermediate scrutiny under the First Amendment because the rules in it are “content neutral,” the FCC said in its brief. “The rules are designed to prevent MVPDs [multichannel video programming distributors] from engaging in anticompetitive practices with respect to programming vendors,” it said. The standard is the same as the one the D.C. Circuit applied when it upheld the commission’s leased access rules and rejected a First Amendment challenge, it said. Strict scrutiny, a more challenging standard of judicial review to overcome, doesn’t apply because the rules “do not reflect any preference for aversion to any particular content,” it said. And under intermediate scrutiny, the rules survive review, it said.
Furthermore, the FCC has the authority to grant standstill orders to preserve the status quo while it adjudicates carriage complaints, it said. “Like courts, administrative agencies may grant interim relief in appropriate cases to preserve the status quo before addressing the merits of a proceeding,” it said. “The FCC is no exception.”
Additionally, the commission said it followed correct administrative procedure when it adopted the rules. If the commission granted a standstill order but ultimately ruled in favor of the MVPD in a dispute, the MVPD would be compensated by the FCC on a case-by-case basis, it said. Furthermore, “nothing prevents a disappointed cable operator against whom standstill relief is granted from seeking a stay of such relief from the full Commission,” when the order is issued by the Media Bureau, it said.
The commission also gave proper notice of the new rules, it said. “The Commission correctly concluded that its codification of existing standstill procedure fell within” an exception given to agencies of APA notice requirements, it said. The notice requirements do not apply to “rules of agency organization, procedure or practice,” it said. And even if the commission were required to provide notice of the standstill provision of the rule, “it provided sufficient notice to satisfy the APA,” it said.