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http://www.multichannel.com/article/CA6586731.html
*Regulators Ask Appellate Court to Amend Franchising ‘Shot Clock” Rule
Take Issue with 90-Day Requirement for Franchising Approval
By Linda Haugsted
Multichannel News
08/12/08 11:45:00 AM
[ comments invited ]
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Local cable regulators have asked the U.S. Court of Appeal for the
Sixth Circuit to reconsider its decision supporting the 2007 ruling
by the Federal Communications Commission mandating that local
governments approve new franchising applications in 90 days or less.
The appeal alleges that the appeals court decision, issued June 27,
conflicts with rulings of the Supreme Court and the Sixth Circuit's
own precedents. The request for an en banc rehearing (asking all of
the Sixth Circuit judges to consider the legal question, not just a
limited panel) was filed Aug. 11. The request was filed by the
National Association of Telecommunications Officer and Advisors, the
Alliance for Community Media and the Alliance for Communications
Democracy.
Earlier court rulings have upheld the actions of the FCC, which last
year issued a report and order that eases the migration into the
cable business of telephone companies and other potential
competitors. In addition to the 90-day "shot clock," the FCC said
cities should apply "reasonable" build-out schedules, forbids local
fees and prevents cities from requiring municipal network services
in excess of those required from incumbents.
The municipal trade groups argue that federal and circuit court
decisions expressly give state and local authorities, not the
federal agency, authority over cable franchising. The earlier
decisions alter the balance of powers among state, local and federal
authorities, the en banc request states.
Further, the Supreme Court has ruled that agencies can't create
remedies where Congress has already specified one.
The National Cable & Telecommunications Association sided with NATOA
and the other agencies in earlier arguments over the FCC report and
order, but the NCTA decided last month it would not appeal.
"As we stated when this decision came out, we are taking those steps
we feel are necessary to ensure that the American consumer is
protected and the rights of our communities are not harmed," said
NATOA executive director Libby Beaty, commenting on the en banc
request.
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