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.