NATIONAL -- Local government groups appeal FCC's video franchising order
Six local government and public access communications organizations have asked the federal courts to overturn an FCC order that restricts the power of local franchising authorities to negotiate with would-be cable TV providers, arguing that the agency did not have the authority to take that action and that it acted in an arbitrary and capricious manner.

In their petitions they also assert the FCC's action was "an abuse of discretion, unsupported by substantial evidence, and in violation of the United States Constitution," as well as the 1934 Communications Act and the Administrative Procedure Act's public notice requirements.

The organizations -- the Alliance for Communications Democracy, the Alliance for Community Media, the National Association of Counties, the National League of Cities, the National Association of Telecommunications Officers and Advisors, and the U.S. Conference of Mayors -- filed petitions in Third, Fourth, and Sixth federal appeals court circuits, which cover the organizations' various headquarters. The court that actually hears the case will be selected by lottery; other circuits could be added to the mix if other parties file appeals.

The National Cable & Telecommunications Association, whose members did not benefit from the order because they are incumbent, although they benefit from proposals in the FNPRM, has also argued the FCC didn't have the authority for some aspects of its order (TRDaily, March 15). An NCTA spokeswoman yesterday said the association is "keeping its options open" with respect to a possible court appeal.

The FCC adopted the "video franchising" report and order and further notice of proposed rulemaking in Media Bureau docket 05-311 late last year and released the text March 5. Commissioners Michael J. Copps and Jonathan S. Adelstein dissented from the decision.

The order grants interim franchising authority to competitive cable TV applicants when local franchising authorities (LFAs) miss new FCC-mandated deadlines for acting on applications. The deadlines are 90 days for applicants, such as local exchange carriers, that already have authority to operate facilities in the public rights-of-way and six months for other competitive applicants. The order also sets out a number of potential LFA demands that will be considered unreasonable refusals to award a competitive franchise, such as requiring the applicant to agree to unreasonable build-out requirements; requiring in-kind compensation and other non-incidental franchise costs without counting it towards the franchise fee cap of 5% of gross cable TV system revenues; and requiring unreasonable obligations relating to public, educational, and governmental (PEG) channels and institutional networks (I-Nets).

Yesterday the local government and community access groups said the FCC's order "would severely restrict the ability of local governments to protect their citizens, rights-of-way, community channels and public safety networks. In addition, the FCC order would lead to a tremendous reduction in the revenues received by local governments for use of their rights-of-way, as well as loss of cable services to many governmental buildings and schools."