In The Courts
The Supreme Court of Illinois has ruled unanimously against the City of Chicago in its efforts to collect revenues related to the franchise fee from Comcast’s cable modem service. The decision, handed down November 20, 2008, relied heavily on the FCC’s 2002 interpretation excluding cable modem service from inclusion in a cable operator’s 5% gross revenues for franchise fee purposes (along with its definition of cable modem service as an interstate information service), along with several Federal district court decisions. The full text of the decision is available here.
Alexandria, VA – The National Association of Telecommunications Officers and Advisors (NATOA) joined by its partners, the Alliance for Community Media (ACM) and the Alliance for Communications Democracy (ACD) today filed a Petition for Rehearing En Banc before the United States Court of Appeals for the Sixth Circuit on its decision that upheld the FCC’s rules adopted in the First Report and Order in the Video Franchise Docket 05-311. “We have taken this action because our review of the panel’s decision indicates that it conflicts with Supreme Court and circuit precedent in statutory construction principles, with respect to federal agencies substituting judgment for state and local elected officials, and that it failed to properly apply the arbitrary and capricious standard for reviewing evidence supporting agency decision-making.”
“In other words, the court ignored its own prior decisions, those of other circuits affected by its decision and those of the United States Supreme Court. Clearly, the full court needs to consider this case, otherwise we will have a federal agency exercising an entirely free hand where Congress gave them no such authority, but in fact withheld that very power. The concept of our federalist form of government, with reliance on the separation of power and respect for our concurrent forms of jurisdiction should not be undermined by such a narrow and ill-conceived approach,” stated Libby Beaty, NATOA’s Executive Director. “As we stated when this decision came out, we are taking those steps we feel are necessary to ensure that the American consumer is protected and the rights of our communities and in our communities are not harmed.”
NATOA has engaged the services of Lani Williams at the Local Government Lawyers Roundtable for the preparation of the Petition and for future court action.
In response to the Wall Street Journal, NATOA Executive Director Libby Beaty stated “The federal government should not be dictating what’s going on in our local communities.” See WSJ June 27, 2008 - Appeals Court Upholds FCC Franchise Rule