Future of Cable LFA Order, 6th Circuit Appeal in Question
Localities interests and allies see at least a short-term win with the FCC seeking to pause an appeal of its 2019 cable local franchise authority (LFA) decision, as the agency takes a fresh look at the order. They aren't sure the motion for abeyance filed with the 6th U.S. Circuit Court of Appeals means the agency will do a 180-degree turnabout on the order itself. A major issue with the rules and the odds of the agency doing anything about it is the deadlocked 2-2 FCC.
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With acting Chairwoman Jessica Rosenworcel and Commissioner Geoffrey Starks dissenting (see 1908010011), and with Nathan Simington not yet a commissioner when the vote was taken, the Office of General Counsel has an obligation to determine "how the bosses ... want to move forward," said Gary Resnick of GrayRobinson. Commissioner Brendan Carr approved the 2019 order. Local telecom lawyer Resnick said it was predictable the change in administration might result in a change of interpretation of the Cable Act and revisiting the LFA order.
FCC options include doing nothing or opting to open a Further NPRM suggesting changes to the 2019 rules, the latter being the most likely route if the Rosenworcel administration decides it wants to revisit the order, said NATOA General Counsel Nancy Werner. NATOA hopes the FCC takes up the order and supports changing the statute. Werner said it's not a foregone conclusion the appellate court will grant the FCC's abeyance request, though generally courts put off oral argument when most parties support it. The commission didn't comment.
The abeyance motion "is good to see," and it remains to be seen where it goes from here, said Alliance for Community Media President Mike Wassenaar. He said it's unclear if the FCC will revisit one of the biggest problems with the order -- its limits on what non-cable services delivered over cable systems that LFAs can regulate. Rosenworcel and Starks dissents cited issues ranging from how the order would financially hurt public, educational and governmental channels to potentially upending long-standing franchise agreements.
Asked if the abeyance is for the FCC to buy time in hopes a third Democratic commissioner gets appointed in the meantime, lawyers said they're taking claims in the request at face value. A third Democrat isn't a guaranteed supporter of undoing the LFA order, Wassenaar said.
In the docket 19-4161 motion Wednesday, the FCC said (in Pacer) a 120-day delay to oral argument, now scheduled for April 15, would let the newly constituted commission "determine how it plans to proceed ... including whether to revisit some or all of the actions taken in the Order." It said an abeyance would let the court avoid holding oral argument on challenges to an order "that might be re-evaluated by the agency." Lawyers said it's not clear how soon the 6th Circuit might decide on the abeyance motion, though it surely wouldn't delay until just before oral argument.
Opposing the abeyance request, NCTA said (in Pacer) the issues, in the form of rulemakings on the statutory construction of the franchising provisions of the Cable Act, "have been pending before this Court for years." If the FCC further acts on the order, "it should have the benefit of this Court’s guidance on the statutory interpretation questions," NCTA said. It called the regulator's assertion that it might reevaluate the order "too speculative."
Backing the motion, various locality petitioners and interveners said (in Pacer) Thursday there's no harm to a delay since the rules are in effect now. A cable lawyer said if the Office of General Counsel decides the agency doesn't want to defend the order, or defend it in full, NCTA could theoretically take on argumentation of some provisions.