Not only was nobody aware that the FCC was considering injecting a standstill provision into the resolution of MVPD carriage disputes, suggested House Communications Subcommittee Chairman Greg Walden (R-OR), the proceeding had been caught for so long in an FCC backwater that many may have forgotten there even was a proceeding. However, Walden did find cause to praise the FCC’s handling of another matter.
Walden said that the FCC did a great job in putting together its “Measuring Broadband in America” report with the assistance of well-chosen private sector partners. But he called the carriage proceeding and standstill provision evidence of process gone bad.
“In a single week the FCC has demonstrated both good and bad process,” said Walden. “The process leading to the FCC’s report on ‘Measuring Broadband America’ was exemplary. The Commission selected a commercial vendor through open, competitive bids; used a transparent process to partner with stakeholders; and leveraged its technical expertise. As a result, the Commission and its partners designed and completed a path-breaking study helpful to all broadband consumers. Just as important, the Commission recognized the limits of its work and declined to make conclusions where its data were too limited.”
Then there was Walden’s other-hand opinion. He concluded, “In contrast, the process leading to the FCC’s decision to adopt standstill rules for program-carriage complaints leaves much to be desired. The FCC based these rules on a four-year-old Notice of Proposed Rule Making that did not provide the text of a single proposed rule and did not clearly indicate a standstill rule was on the table. Regardless of one’s position on the merits of the ruling, this needlessly opens the order to challenge and weakens the FCC’s credibility. The fact that this comes on the heels of the Third Circuit’s recent procedural rebuke in the Prometheus decision makes it all the more puzzling. To avoid these types of controversies and improve the quality of decision-making, the Communications and Technology Subcommittee is considering legislation that would require the FCC to publish the text of a proposed rule before adoption. The Commission has come a long way on process recently, but I am afraid it still has a ways to go.”