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Thursday, June 05, 2003

What Did the DC Circuit Say to the FCC?

Tony Adragna
When The News Hour's Terence Smith asked FCC Chairman Michael Powell to "make the case" for the Commission's action, Powell began
[...] I think it's important to note, I have to say at the outset that one of the reasons for the rules is because Congress set up a regime in 1996 obligating the commission to review them every two years, and the court has taken a very strenuous view requiring the commission to prove why a rule was necessary. All the rules that we had until today had been struck down and were unenforceable, so by today's action trying to build a stronger foundation for the preservation of the rules and modifying them slightly, I believe we've reinstated meaningful limits that will operate in the marketplace.[emphasis added]
Well, whenever I hear from somebody that a court has said & done something, I want to know exactly what it was the court actually said & done.

So, what did the DC Circuit said & done?

In TIME WARNER ENTRTNMT v FCC, a March '01 panel decision on review of FCC "limits on the number of cable subscribers a person is authorized to reach through cable systems owned by such person, or in which such person has an attributable interest" — "horizontal limts" — and "limits on the number of channels on a cable system that can be occupied by a video programmer in which a cable operator has an attrib- utable interest" — "vertical limits" — the court did this
[We] reverse and remand the horizontal and vertical limits, including the refusal to exempt cable operators subject to effective competition from the vertical limits, for further proceedings.
Why did the panel do this? Mostly because the FCC misread legislative intent, misread the relevant statute, and failed to offer sufficient evidence that the caps were "necessary".

But, the panel never decided that limits, even those adopted in the FCC rule, couldn't be justified. Rather, the FCC failed to present a case that would justify the limits ["the FCC has not presented the 'substantial evidence' required by Turner I and Turner II that such collusion has in fact occurred or is likely to occur"... "The Commission's own findings amount to precious little"..." the FCC has put forth no evidence at all that indicates the prospects for collusion"]. The panel neither ordered the FCC to repeal nor modify either of those two limits. The FCC was ordered on remand to reconsider, and may very well have been able to put together a factual case, or at least gather enough evidence to support a "predictive judgement" that, absent the limits there would be harm to the public interest.

So, what did the FCC do?

Well, if Fox Television Stations, Inc. v. FCC proves anything, it's that the FCC didn't learn from its prior experience before the DC Circuit. This case challenged the National Television Station Ownership (NTSO) Rule and the Cable/Broadcasting Cross-Ownership (CBCO) Rule. Again, as in the prior case, a different panel from the same circuit says basically the same re the FCC's presentation — misread the statute & failed to present a case justifying the rules. Plus, the panel notes that the FCC failed to even address inconsistancies in its own reports. And this time the panel is even more explicit about what the FCC might be able to do.

In remanding the NTSO, the panel refused to order repeal because "the probability that the Commission will be able to justify retaining the NTSO Rule is sufficiently high that vacatur of the Rule is not appropriate." So, what did the FCC do?

We know that instead of justifyng the rule, they modified. But, did the FCC do the type of work needed to justify the new limits? I don't know — it sounds to me like Chairman Powell was saying that the new limits ought make the rule passable, but the DC Circuit has said that the rule must be "necessary" in order to be justified.

Same with cross ownership rules. I'm not sure if the provisions in the new rulemaking are a re-promulgation of those that the DC Circuit ordered repealed, but the same question is presented — is the rule justified by its necessity? If the FCC merely set limits at a place where it's hoped that the rule would be justified, but has yet to justify limits on cross ownership per se, then the Commission still hasn't met its burden.

Next comes local ownership rules — anybody wanna guess where that went on remand?

So, did the DC Circuit set the bar too high on justifying an FCC rule limiting ownership? Is the FCC simply not willing to put forth an effort at getting over a hurdle no matter how surmountable? Or, is the FCC doing now what it seems to have done in the past — unjustified rulemaking without much evidence to support what it's doing.

I dunno..

n.b. I do favor well justified rules to protect the public interest. But, to the extent that the FCC appears unable or unwilling to justify what the appeals court has noted on remand may be justified, the Commission is failing its duty to the public interest.

Tuesday, June 03, 2003

More on "Socially Accepted Bigotry"

Tony Adragna
I just noticed Glenn's response
Tony Adragna says it's about partisanship and points out that there's plenty of vitriol from the right. And that's true -- but it's sort of like responding to the Bill Bennett gambling story by noting that Democrats, gamble, too. Bennett set himself up as a moral arbiter, which made people see what he did as hypocritical.

In the same way, Stern is remarking on how PC types who make a fetish of avoiding name-calling and stereotyping are in fact happy to do just that. Which makes them seem, well, hypocritical. And just as Bennett seemed to a lot of people to be immoral by the standards that he professed, so too do these people seem bigoted by the standards that they profess. When Bennett said "but I never condemned gambling," it was about as persuasive as when these people say "but we never condemned this sort of thing when it was aimed at Republicans!"
Actually, what I said is that it's "about how political partisans irrespective of party tend toward abandoning reason in favor of vitriol." I can see where Glenn might've thought that my point was about "partisanship", as I did highlight "political partisan". But my point was really about too much partisan rhetoric taking the form of "vitriol". And it's a bitterness seen not just coming from "progressive Democrats" & "rednecks" — as Stern wants to argue — but also from, as I argued, well educated "thoughtful people" on the right.

Hence, I say, as Gertrude noted to Hamlet, Stern's performance is, insofar as it intends to suggest that liberals practice as "socially accepted" some form of "bigotry" the likes of which can't be found anywhere else except amongst racists, unpersuasive.

But I go further in disagreeing with Glenn & Stern on their insistance that the issue is "hypocrisy". That's certainly what both would like to focus on, but I think the bigger issue is the bigotry that finds expression in vitriol. I mean, simply calling somebody "hypocrite" — even proving the charge — doesn't seem to me to be adequate. What's the underlying failing? Is it so serious as to be a fatal flaw? Would that failing still be a fatal flaw if it wasn't wrapped up in hypocrisy?

Certainly! If bigots from the right were to say "but we never claimed to be tolerant", that doesn't make their intolerant bitterness any more acceptible.

That's not to be read as diagreeing with Glenn as he dispenses with the "but we never condemned this sort of thing when it was aimed at Republicans!" But it is to point out where I thinkGlenn & Stern are missing a meatier fish for going after the specimen that's jucier — Stern hits hard on bigotry, and ends with his wish that there was less bigotry amongst his "progressive" friends, but both he and Glenn agree "that [hypocrisy] is precisely what this issue boils down to at its purest."

Why isn't the issue for them "bigotry" in all of its varieties?