FCC Still Pondering Next Leased Access Moves

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Washington—Federal Communications Commission chairman Kevin Martin hasn't decided whether he will try to revive cable leased access rules in the few days he has remaining as chairman, according to a recent FCC court filing.

A federal appeals court in Cincinnati and the Bush administration's Office of Management and Budget have blocked the FCC from enforcing the cable regulations, designed to help programmers who pay to get on cable systems. The FCC, however, can override OMB's objections.

The FCC's filing on Nov. 26 notified the U.S. Court of Appeals for the Six Circuit that the agency had not come to any conclusion about how to proceed on a request by the United Church of Christ (UCC) to overturn OMB and adjust the rates cable operators can charge leased access programmers.

"... the [FCC] has received a number of comments concerning UCC's request that the FCC override OMB's decision. The [FCC] and its staff are reviewing those comments. The [FCC] has not yet decided how it will respond to UCC's request or to OMB's decision," the FCC told the 6th Circuit.

Martin is expected to step down as chairman on or before Jan. 20 when President-elect Barack Obama is sworn in as the new president, leaving Martin about 50 days to rally the other FCC members on possible reinstatement of the OMB-rejected rules.

Federal law requires large-capacity cable operators to lease up to 15% of their channels to third party commercial programmers at rates set by the FCC. Leased access has struggled as a concept in part because cable's business model is predicated on programmers receiving payment from operators, not vice versa.

In November 2007, the FCC slashed leased access rates to the bone, causing a panel of the 6th Circuit to block implementation, having been persuaded by the cable industry that the FCC's low rates violated the statutory provision that the FCC should not "adversely affect the operation, financial condition, or market development" of cable systems.

OMB—which is under direct White House control—said the FCC's data collection mandates with regard to leased access placed burdens on cable operators that violated the Paperwork Reduction Act, a law designed to reduce bureaucratic red tape on regulated entities, especially small businesses.

The 6th Circuit ordered the FCC to file a status report every 60 days regarding its plans to address OMB's objections. At the FCC's request, the court isn't allowing cable's litigation to proceed while the agency ponders its options.

"The Leased Access Programmers Association hopes the [FCC] will concur with UCC and override the OMB's decision and clear the way for the rules adopted a year ago to take effect," said Charlie Stogner, president of the Leased Access Programmers Association and CEO of StogMedia, a national leased access user.

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