Local Franchising Authorities' Regulation of Cable Operators and Cable Television Services, 13069-13070 [2020-04707]
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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Rules and Regulations
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information specified in
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the procedures set forth in TSCA section
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Records must be retained for a period of
5 years beginning on the last day of the
submission period.
lotter on DSKBCFDHB2PROD with RULES
§ 710.55 Claim review, duration of
protection, TSCA Inventory maintenance,
posting results, and extension.
17:52 Mar 05, 2020
Jkt 250001
[FR Doc. 2020–03868 Filed 3–5–20; 8:45 am]
BILLING CODE 6560–50–P
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section 14 and 40 CFR part 2, subpart
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which the confidentiality claim was first
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intent to disclose the information.
(c) Updating the TSCA Inventory. EPA
will periodically update the TSCA
Inventory based on the results of the
reviews of the confidentiality claims
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(d) Posting of annual goals and
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VerDate Sep<11>2014
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additional years, together with an
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47 CFR Part 76
[MB Docket No. 05–311; DA 20–148; FRS
16523]
Local Franchising Authorities’
Regulation of Cable Operators and
Cable Television Services
Federal Communications
Commission.
ACTION: Interpretive rule.
AGENCY:
In this document, the Media
Bureau, Federal Communications
Commission (Commission), clarifies a
Media Bureau order denying a motion
for stay of the Commission’s Third
Report and Order in the abovementioned docket.
DATES: This interpretive rule is effective
on March 6, 2020 and applicable
beginning February 11, 2020.
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding, contact Raelynn Remy of
the Media Bureau, Policy Division, at
Raelynn.Remy@fcc.gov or (202) 418–
2120.
SUPPLEMENTARY INFORMATION: This is a
summary of the Media Bureau’s Order
on Reconsideration, DA 20–148,
adopted and released on February 11,
2020. The full text is available for public
inspection and copying during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street SW, Room
CY–A257, Washington, DC 20554. This
document will also be available via
SUMMARY:
PO 00000
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13069
ECFS at https://docs.fcc.gov/public/
attachments/DA-20-148A1.docx.
Documents will be available
electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat. The complete
text may be purchased from the
Commission’s copy contractor, 445 12th
Street SW, Room CY–B402, Washington,
DC 20554. Alternative formats are
available for people with disabilities
(Braille, large print, electronic files,
audio format), by sending an email to
fcc504@fcc.gov or calling the
Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
Synopsis
1. By this Order, we grant NCTA—
The internet & Television Association’s
(NCTA’s) Petition for Clarification 1 of
the Media Bureau’s Order Denying
Motion for Stay of the Commission’s
Third Report and Order 2 in the abovecaptioned proceeding.3 In its Petition,
NCTA requests that the Bureau remove
from the Stay Denial Order certain
language in paragraph 21 that ‘‘creates
the potential for confusion and the
appearance of a conflict with the Third
Report and Order.’’ In particular, NCTA
asks that the Bureau excise two
statements from paragraph 21. These
statements are: ‘‘The rules in the [Third
Report and Order] did not supersede
provisions in existing franchise
agreements on their effective date’’ and
‘‘[i]f negotiations fail, the terms in the
franchise remain in effect unless and
until a cable operator challenges those
terms and proves that the terms violate
the [Third Report and Order’s]
requirements.’’
2. After reviewing the record
developed in response to the Petition,4
1 NCTA Petition for Clarification of Order
Denying Motion for Stay, MB Docket No. 05–311,
filed Nov. 15, 2019 (Petition). Although NCTA did
not title its submission as a petition for
reconsideration, we will treat it as a petition for
reconsideration because it seeks further review of
the Stay Denial Order.
2 The Third Report and Order became effective on
September 26, 2019 (84 FR 44725, Aug. 27, 2019).
3 An extensive discussion of the historical
background of this proceeding is set forth in the
Third Report and Order and the Stay Denial Order
(https://docs.fcc.gov/public/attachments/DA-191149A1.docx); thus, we do not reiterate it at length
here. After the Stay Denial Order was issued,
certain municipalities sought a judicial stay of the
Third Report and Order in the Ninth Circuit. That
court subsequently transferred challenges to the
Third Report and Order then pending before it,
including the motion for judicial stay, to the Sixth
Circuit.
4 The Media Bureau issued a Public Notice
seeking comment on NCTA’s petition (84 FR 66186,
Dec. 3, 2019). One party filed comments opposing
the Petition. One party filed comments in support
of the Petition.
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13070
Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Rules and Regulations
we agree with NCTA that these
statements could be interpreted ‘‘to
conflict with the Third Report and
Order’s plain directives and require
procedures not mandated by the
Commission.’’ In particular, we note
that the Third Report and Order states
that ‘‘[i]f a franchising authority refuses
to modify any provision of a franchise
agreement that is inconsistent with this
Order, that provision is subject to
preemption under section 636(c).’’ We
also note that the Third Report and
Order ‘‘encourage[s] the parties to
negotiate franchise modifications within
a reasonable time,’’ and ‘‘find[s] that 120
days should be, in most cases, a
reasonable time for the adoption of
franchise modifications.’’ Contrary to
these statements in the Third Report
and Order, the statements that NCTA is
seeking to excise from the Stay Denial
Order could be construed as authorizing
local franchising authorities (LFAs) to
enforce unlawful franchise provisions
unless and until a cable operator has
proven to a court that they are unlawful.
3. We disagree with the National
Association of Telecommunications
Officers and Advisors (NATOA) that
removing the relevant statements from
paragraph 21 of the Stay Denial Order
undermines our reasons for denying the
stay petition. That argument ignores our
two primary reasons for finding that
LFAs will not suffer irreparable harm,
absent a stay. First, we concluded in the
Stay Denial Order that the injury
claimed by LFAs (municipalities’ loss of
critical facilities and services) is
speculative. We determined that
localities can maintain access to critical
facilities and services by adjusting
revenues and expenses in response to
changes in franchise fee revenue
streams—for example, LFAs can
maintain critical facilities and services
‘‘either by prioritizing some in-kind
contributions over others or by
prioritizing in-kind contributions over
the fees they would otherwise
recover.’’ 5 Second, we concluded that
the harm alleged by LFAs (loss of free
services) was an economic loss, which
under well-established case law, does
not, in and of itself, constitute
irreparable harm. These grounds alone
were sufficient for denying the
administrative stay request.
4. NATOA claims that budget
amendments and procurement
processes to authorize payment for
services previously furnished pursuant
to a cable franchise are often lengthy,
5 As NCTA notes, ‘‘revenues would be
recoverable in the event that the Third Report and
Order is ultimately overturned on appeal, further
undermining the notion that such losses could
constitute irreparable harm.’’
VerDate Sep<11>2014
17:52 Mar 05, 2020
Jkt 250001
and that LFAs ‘‘cannot . . . start the
process without knowing what value a
cable operator will assert for nonmonetary franchise obligations that
[would be] offset against franchise fee
payments.’’ 6 However, NATOA
provides no evidence that any cable
operator would abruptly cease services
or take other unilateral action during the
pendency of the appeal that would
adversely affect municipalities, or create
immediate or irreparable harm. Instead,
as we explained in the Stay Denial
Order, ‘‘the Order encouraged LFAs, in
response to a request from a cable
operator, to negotiate franchise terms
that conform to the Order in a
reasonable amount of time . . . Thus,
for example, an LFA is not required to
assess the costs of in-kind contributions
that it currently receives from a cable
operator (e.g., free cable service) against
the franchise fee until the cable operator
asks the LFA to amend the terms of its
franchise.’’ Accordingly, consistent with
the terms of this order, we grant NCTA’s
petition.
5. We therefore conclude that the
following two sentences in paragraph 21
of the Stay Denial Order misinterpret
the Order: ‘‘The rules in the [Third
Report and Order] did not supersede
provisions in existing franchise
agreements on their effective date’’ and
‘‘[i]f negotiations fail, the terms in the
franchise remain in effect unless and
until a cable operator challenges those
terms and proves that the terms violate
the [Third Report and Order’s]
requirements.’’ The same is true of the
sentence in paragraph 21 of the Stay
Denial Order that reads: ‘‘At that point,
the LFA and the cable operator have 120
days to renegotiate the franchise
agreement.’’ Instead, we find, in
accordance with the Third Report and
Order, that the LFA and the cable
operator have a reasonable period of
time to renegotiate the franchise
agreement, which in most cases is 120
days. If negotiations fail, the cable
operator and the LFA can continue to
rely on the processes and remedies that
may be contained in their franchise
agreement or that are otherwise
available.7
6. Accordingly, it is ordered that,
pursuant to the authority contained in
6 NCTA asserts that this argument is baseless and
states that ‘‘[a]ll NCTA seeks in its Petition is what
the Third Report and Order already provided:
Clarification that parties should negotiate timely
and in good faith to reach mutually agreeable
franchise terms that comply with the Cable Act and
rulings set forth in the Order.’’
7 For example, the cable operator and the LFA can
take the dispute to court or, in the case of an
interpretive dispute regarding the scope of the rules
adopted in the Third Report and Order, request a
declaratory ruling from the Commission.
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sections 4(i), 4(j), 303(r), and 405 of the
Communications Act of 1934, as–
amended, 47 U.S.C. 154(i)–(j), 303(r),
and 405 and the authority delegated in
§§ 0.61, 0.283, and 1.106 of the
Commission’s rules, 47 CFR 0.61, 0.283,
and 1.106, this Order in MB Docket No.
05–311 is adopted. It is further ordered
that the Petition for Clarification of
Order Denying Motion for Stay pending
judicial review of the Third Report and
Order in this proceeding, filed by
NCTA, is granted to the extent indicated
above. It is further ordered that this
Order shall be effective upon its release.
Federal Communications Commission.
Thomas Horan,
Media Bureau.
[FR Doc. 2020–04707 Filed 3–5–20; 8:45 am]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 160426363–7275–02]
RTID 0648–XS025
Coastal Migratory Pelagic Resources
of the Gulf of Mexico and Atlantic
Region; 2019–2020 Commercial Hookand-Line Closure for King Mackerel in
the Gulf of Mexico Southern Zone
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS implements an
accountability measure (AM) to close
the hook-and-line component of the
commercial sector for king mackerel in
the Gulf of Mexico (Gulf) southern zone.
This closure is necessary to protect the
Gulf king mackerel resource.
DATES: This temporary rule is effective
from 12:01 a.m. local time on March 4,
2020, through June 30, 2020.
FOR FURTHER INFORMATION CONTACT:
Kelli O’Donnell, NMFS Southeast
Regional Office, telephone: 727–824–
5305, email: kelli.odonnell@noaa.gov.
SUPPLEMENTARY INFORMATION: The
fishery for coastal migratory pelagic fish
in the Gulf includes king mackerel,
Spanish mackerel, and cobia, and is
managed under the Fishery
Management Plan for the Coastal
Migratory Pelagic Resources of the Gulf
of Mexico and Atlantic Region (FMP).
The FMP was prepared by the Gulf of
Mexico and South Atlantic Fishery
SUMMARY:
E:\FR\FM\06MRR1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 45 (Friday, March 6, 2020)]
[Rules and Regulations]
[Pages 13069-13070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04707]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 05-311; DA 20-148; FRS 16523]
Local Franchising Authorities' Regulation of Cable Operators and
Cable Television Services
AGENCY: Federal Communications Commission.
ACTION: Interpretive rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Media Bureau, Federal Communications
Commission (Commission), clarifies a Media Bureau order denying a
motion for stay of the Commission's Third Report and Order in the
above-mentioned docket.
DATES: This interpretive rule is effective on March 6, 2020 and
applicable beginning February 11, 2020.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Raelynn Remy of the Media Bureau, Policy Division,
at [email protected] or (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's
Order on Reconsideration, DA 20-148, adopted and released on February
11, 2020. The full text is available for public inspection and copying
during regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street SW, Room CY-A257,
Washington, DC 20554. This document will also be available via ECFS at
https://docs.fcc.gov/public/attachments/DA-20-148A1.docx. Documents
will be available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat. The complete text may be purchased from the Commission's copy
contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554.
Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format), by sending an
email to [email protected] or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Synopsis
1. By this Order, we grant NCTA--The internet & Television
Association's (NCTA's) Petition for Clarification \1\ of the Media
Bureau's Order Denying Motion for Stay of the Commission's Third Report
and Order \2\ in the above-captioned proceeding.\3\ In its Petition,
NCTA requests that the Bureau remove from the Stay Denial Order certain
language in paragraph 21 that ``creates the potential for confusion and
the appearance of a conflict with the Third Report and Order.'' In
particular, NCTA asks that the Bureau excise two statements from
paragraph 21. These statements are: ``The rules in the [Third Report
and Order] did not supersede provisions in existing franchise
agreements on their effective date'' and ``[i]f negotiations fail, the
terms in the franchise remain in effect unless and until a cable
operator challenges those terms and proves that the terms violate the
[Third Report and Order's] requirements.''
---------------------------------------------------------------------------
\1\ NCTA Petition for Clarification of Order Denying Motion for
Stay, MB Docket No. 05-311, filed Nov. 15, 2019 (Petition). Although
NCTA did not title its submission as a petition for reconsideration,
we will treat it as a petition for reconsideration because it seeks
further review of the Stay Denial Order.
\2\ The Third Report and Order became effective on September 26,
2019 (84 FR 44725, Aug. 27, 2019).
\3\ An extensive discussion of the historical background of this
proceeding is set forth in the Third Report and Order and the Stay
Denial Order (https://docs.fcc.gov/public/attachments/DA-19-1149A1.docx); thus, we do not reiterate it at length here. After the
Stay Denial Order was issued, certain municipalities sought a
judicial stay of the Third Report and Order in the Ninth Circuit.
That court subsequently transferred challenges to the Third Report
and Order then pending before it, including the motion for judicial
stay, to the Sixth Circuit.
---------------------------------------------------------------------------
2. After reviewing the record developed in response to the
Petition,\4\
[[Page 13070]]
we agree with NCTA that these statements could be interpreted ``to
conflict with the Third Report and Order's plain directives and require
procedures not mandated by the Commission.'' In particular, we note
that the Third Report and Order states that ``[i]f a franchising
authority refuses to modify any provision of a franchise agreement that
is inconsistent with this Order, that provision is subject to
preemption under section 636(c).'' We also note that the Third Report
and Order ``encourage[s] the parties to negotiate franchise
modifications within a reasonable time,'' and ``find[s] that 120 days
should be, in most cases, a reasonable time for the adoption of
franchise modifications.'' Contrary to these statements in the Third
Report and Order, the statements that NCTA is seeking to excise from
the Stay Denial Order could be construed as authorizing local
franchising authorities (LFAs) to enforce unlawful franchise provisions
unless and until a cable operator has proven to a court that they are
unlawful.
---------------------------------------------------------------------------
\4\ The Media Bureau issued a Public Notice seeking comment on
NCTA's petition (84 FR 66186, Dec. 3, 2019). One party filed
comments opposing the Petition. One party filed comments in support
of the Petition.
---------------------------------------------------------------------------
3. We disagree with the National Association of Telecommunications
Officers and Advisors (NATOA) that removing the relevant statements
from paragraph 21 of the Stay Denial Order undermines our reasons for
denying the stay petition. That argument ignores our two primary
reasons for finding that LFAs will not suffer irreparable harm, absent
a stay. First, we concluded in the Stay Denial Order that the injury
claimed by LFAs (municipalities' loss of critical facilities and
services) is speculative. We determined that localities can maintain
access to critical facilities and services by adjusting revenues and
expenses in response to changes in franchise fee revenue streams--for
example, LFAs can maintain critical facilities and services ``either by
prioritizing some in-kind contributions over others or by prioritizing
in-kind contributions over the fees they would otherwise recover.'' \5\
Second, we concluded that the harm alleged by LFAs (loss of free
services) was an economic loss, which under well-established case law,
does not, in and of itself, constitute irreparable harm. These grounds
alone were sufficient for denying the administrative stay request.
---------------------------------------------------------------------------
\5\ As NCTA notes, ``revenues would be recoverable in the event
that the Third Report and Order is ultimately overturned on appeal,
further undermining the notion that such losses could constitute
irreparable harm.''
---------------------------------------------------------------------------
4. NATOA claims that budget amendments and procurement processes to
authorize payment for services previously furnished pursuant to a cable
franchise are often lengthy, and that LFAs ``cannot . . . start the
process without knowing what value a cable operator will assert for
non-monetary franchise obligations that [would be] offset against
franchise fee payments.'' \6\ However, NATOA provides no evidence that
any cable operator would abruptly cease services or take other
unilateral action during the pendency of the appeal that would
adversely affect municipalities, or create immediate or irreparable
harm. Instead, as we explained in the Stay Denial Order, ``the Order
encouraged LFAs, in response to a request from a cable operator, to
negotiate franchise terms that conform to the Order in a reasonable
amount of time . . . Thus, for example, an LFA is not required to
assess the costs of in-kind contributions that it currently receives
from a cable operator (e.g., free cable service) against the franchise
fee until the cable operator asks the LFA to amend the terms of its
franchise.'' Accordingly, consistent with the terms of this order, we
grant NCTA's petition.
---------------------------------------------------------------------------
\6\ NCTA asserts that this argument is baseless and states that
``[a]ll NCTA seeks in its Petition is what the Third Report and
Order already provided: Clarification that parties should negotiate
timely and in good faith to reach mutually agreeable franchise terms
that comply with the Cable Act and rulings set forth in the Order.''
---------------------------------------------------------------------------
5. We therefore conclude that the following two sentences in
paragraph 21 of the Stay Denial Order misinterpret the Order: ``The
rules in the [Third Report and Order] did not supersede provisions in
existing franchise agreements on their effective date'' and ``[i]f
negotiations fail, the terms in the franchise remain in effect unless
and until a cable operator challenges those terms and proves that the
terms violate the [Third Report and Order's] requirements.'' The same
is true of the sentence in paragraph 21 of the Stay Denial Order that
reads: ``At that point, the LFA and the cable operator have 120 days to
renegotiate the franchise agreement.'' Instead, we find, in accordance
with the Third Report and Order, that the LFA and the cable operator
have a reasonable period of time to renegotiate the franchise
agreement, which in most cases is 120 days. If negotiations fail, the
cable operator and the LFA can continue to rely on the processes and
remedies that may be contained in their franchise agreement or that are
otherwise available.\7\
---------------------------------------------------------------------------
\7\ For example, the cable operator and the LFA can take the
dispute to court or, in the case of an interpretive dispute
regarding the scope of the rules adopted in the Third Report and
Order, request a declaratory ruling from the Commission.
---------------------------------------------------------------------------
6. Accordingly, it is ordered that, pursuant to the authority
contained in sections 4(i), 4(j), 303(r), and 405 of the Communications
Act of 1934, as-amended, 47 U.S.C. 154(i)-(j), 303(r), and 405 and the
authority delegated in Sec. Sec. 0.61, 0.283, and 1.106 of the
Commission's rules, 47 CFR 0.61, 0.283, and 1.106, this Order in MB
Docket No. 05-311 is adopted. It is further ordered that the Petition
for Clarification of Order Denying Motion for Stay pending judicial
review of the Third Report and Order in this proceeding, filed by NCTA,
is granted to the extent indicated above. It is further ordered that
this Order shall be effective upon its release.
Federal Communications Commission.
Thomas Horan,
Media Bureau.
[FR Doc. 2020-04707 Filed 3-5-20; 8:45 am]
BILLING CODE 6712-01-P
