NAB: FCC Can't Just Reverse Competitive Presumption

Broadcasters and local franchising authorities filed their reply brief March 8 in their challenge to the Federal Communications Commission reversal of the effective competition presumption. The case is being heard by the US Court of Appeals for the DC Circuit, which has yet to set an oral argument date.

The FCC voted in 2015 to presume local cable operators were subject to effective competition in their traditional video services unless a franchising authority could prove otherwise. The presumption had been that they were not competitive unless a cable operator could prove otherwise. A finding of effective competition deregulates the basic tier. The FCC noted in reversing the presumption that virtually all of the effective competition petitions by multichannel video programming distributors (MVPDs) had been granted in recent years and it made sense, as part of its directive from Congress to make the filing process easier for smaller Internet service providers, to make the process easier for all ISPs by reversing the presumption. The National Association of Broadcasters and the National Association of Telecommunications Officers and Advisors filed suit, saying the FCC had exceeded its authority. In their latest filing, NAB and NATOA took aim at cable operator and FCC arguments that the commission was just shifting the burden of evidence production from the cable operator to the franchise authority. They said that the 1992 Cable Act required that an affirmative finding that competition exists before any governmental agency may exercise jurisdiction. "The Commission cannot fulfill its duty simply by relying on a franchising authority’s failure to submit evidence." They also said that Congress required the FCC to make market-by-market determinations of competition and that the FCC has "abdicated" that responsibility.