The comments are in on the FCC’s consideration of installing an assumption of competition between MVPDs which local franchising authorities would then have to overcome. The NAB noted that none of the commenters presented any evidence supporting the FCC’s apparent granting of this authority to itself.
NAB said the FCC has been required to make individualized findings of effective competition and nothing has happened to change that; moreover, the FCC cannot override a previous certification based on an evidence-free presumption; the FCC cannot give itself the power to do this; and Congress still requires the MVPDs to prove competition, and did not put the burden on LFAs to prove otherwise.
NAB wrote, “None of the comments filed by supporters of the proposed rule demonstrates the contrary. The National Cable and Telecommunications Association (“NCTA”) and the American Cable Association (“ACA”) attack the continuing validity of the current presumption of no effective competition, but their proposed solutions – extinguishing the regulatory jurisdiction of franchising authorities and revoking their certifications en masse strictly on the basis of the converse presumption that effective competition exists everywhere – cannot be reconciled with the 1992 Cable Act. The Act mandates that the Commission make findings of fact regarding effective competition that are based on evidence specific to each franchise area before taking those administrative actions of deregulation and revocation.”
NAB added, “The Commission cannot rely on a presumption as its NPRM would have it, and indeed national data on competitive market shares cannot provide a rational basis for presuming facts about competition in each of more than 23,000 localities of highly variable characteristics.”