In recent weeks, several Congress members have written to FCC Chairman Michael K. Powell expressing a number of views and concerns about the timing of the upcoming biennial review of media ownership regulations.
There are many reasons behind the FCC's present course toward completing this proceeding by early June 2003, without an additional, and unprecedented, notice and comment period. First, the Commission is legally obligated to complete this proceeding in the timeframe established by Congress. Congress mandated in the Telecommunications Act of 1996 that the Commission "shall review… all of its ownership rules biennially." This directive expressly demands timely review and its perpetual character requires closure in order to ready for the subsequent review that shortly follows. He regretfully noted that the Commission is already tardy in satisfying its responsibilities, given that the current review should have been finished by the close of 2002 (two full years since the completion of the first biennial review). If the Commission were to issue a further notice, as some propose, Powell said that the Commission would be hard pressed to finish this 2002 biennial review before late this calendar year and would be forced to start the 2004 review almost immediately.
Powell explained that there must be a fair opportunity between the completion of the present proceeding and the initiation of the next to resolve the inevitable challenges. The parties, he said, will undoubtedly seek commission reconsideration and mount substantial court challenges to the decisions, regardless of the outcome.
The 2004 biennial review will be impossible to conduct responsibly, he said, if court cases remain pending thereby denying the Commission and the parties an understanding of the permissible parameters of the choices the FCC may make. Powell said that this is not trivial, given that the courts have spoken aggressively about the burdens placed on the government for defending its regulations in this area, and that judicial sustainability is a key objective of this proceeding.
He fully conceded, however, that getting it right is more important than just getting it done. The Commission has compiled the most extensive record ever for a biennial review, with more than 18,000 comments (with more than 17,000 coming from individual Americans), compiled over an extended comment period. The record also consists of 12 empirical studies of various aspects of the media marketplace that were separately made available to the public for comment, as were the underlying data that supported those onclusions.
He said that not until this late point in a proceeding that has been pending over eight months has he heard any concerns expressed about the form of the current notice of proposed rulemaking, and that it is late in this process to suddenly adopt an alternative, even if worthy, procedural course.
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