COPPS PUSHES FOR APPEAL OF COURT DECISION ON CROSS-OWNERSHIP

It’s “tremendously urgent” that Commission appeal U.S. Appeals Court, D.C., decision Tues. that overturned FCC’s cable-TV station ownership rules and remanded national TV station ownership cap (CD Feb 20 p1), FCC Comr. Copps told reporters Thurs. at his monthly press breakfast. He said he was concerned that court ruling could add major administrative burden because it appeared to change way FCC conducted biennial reviews of regulations as required by Telecom Act. Comrs. Martin and Abernathy and Chmn. Powell have expressed similar concern (CD Feb 21 p1) but Copps is only one so far to call for appeal to U.S. Supreme Court. “If we have to go through this kind of rulemaking every 2 years, it will add an administrative burden that will be impossible for the Commission to discharge,” he said: “This is a decision that cries out for Supreme Court review.”

Commissioners, including Powell, have expressed concern that court ruling could change burden of proof agency uses in determining whether to keep or eliminate rules during review. Until now, agency has assumed its burden was to justify why it wanted to eliminate certain rules as result of such reviews. However, court ruling attacked FCC’s rationale for not eliminating cross-ownership rule and cap, implying that agency must justify retaining each of its hundreds of rules. Question is “who bears the burden to justify rules and how broadly the court decision extends beyond media issues,” Comr. Martin said late Wed. in panel discussion at conference sponsored by Georgetown U., FCBA and FCC.

Fault may have been FCC’s for not providing enough data to document its decisions but, regardless, court ruling could have “widespread implications” for agency and those who practice before it, Copps told reporters. He also expressed concern that Commission’s various task forces, including media ownership task force, would require further resources to gather data and conduct research, and he didn’t rule out possibility that Commission would ask Congress for supplemental appropriations. In-depth studies and data gathering “don’t come cheaply,” he said. Copps, who said he was urging other commissioners to join him in call for appeal, said court ruling also could have “huge implications for the architecture of the whole media landscape” for future of “localism and multiplicity of voices.”

If agency had to justify retention of every rule every 2 years, Copps said, its resources and those of consumer and other advocacy groups could be severely taxed. Consumer groups would have to file comments on every one of those rules in order to get standing in event of appeals, he told reporters. Asked whether he thought Congress might step in to clarify how it wanted biennial reviews conducted, Copps told reporters he couldn’t speak for members of Congress but he would be “surprised if there wasn’t some concern” because court decision touched on issues that many on Hill care about. “I can’t imagine that Congress intended for the process of reviewing to be so burdensome on consumer groups,” he said. “The procedural implications and substantive implications go so far beyond what I think Congress intended.”

Copps and other commissioners said there was good chance that impact of court’s rule could extend beyond biennial reviews of media issues and include all biennial reviews under Sec. 11 of Telecom Act. Telecom Act required biennial reviews of wide variety of issues every 2 years, starting in 1998. While court didn’t refer to Sec. 11, language of order was broad enough to cause “widespread” application, Comr. Martin said at Georgetown U. conference. Speaking on same panel, Comr. Abernathy said FCC might have hurt itself by expressing views in 1998 biennial review that weren’t consistent with statements it made in earlier decisions on media ownership. “I don’t think the FCC decision was clean but I was still surprised” by court’s ruling, she said.

On wireless local number portability (LNP), Copps said he still was looking at record and assessing “burdens and costs” associated with issue. Verizon Wireless has asked FCC to forbear on wireless LNP deadline of Nov. 24, citing extent to which paying for that capability would hamper carrier efforts to fulfill other regulatory requirements such as E911. State PUCs have opposed FCC’s granting relief from deadline. Copps said: “It is something that is important to consumers. I think it is something that consumers expect to have. I think we need to look at ways to get this done in a reasonable period of time.” He said 8th floor hadn’t received item on LNP on which to vote. As for Nextel White Paper that would reconfigure spectrum to alleviate interference problems in 800 MHz band, Copps said Commission was interested in seeking comment on wide range of possibilities for handling issue. Nextel last fall submitted spectrum plan to Commission on dealing with interference concerns of public safety licensees at 800 MHz by realigning frequencies at 700, 800 and 900 MHz and 2.1 GHz. “There are a number of proposals out there,” he said. “We are going to take a look at those.”