**DISSENTING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

 

*Re:       Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as amended by the Cable Television
Consumer Protection and Competition Act of 1992*

 

            I strongly dissented last year when the Commission issued an
order short-circuiting the franchise negotiation process between new
entrants into the video market and local governments.  Our decision that
day found no justification in the record compiled in the proceeding, and
it struck me as violative of the basic principles of federalism and the
statute Congress has given us.  In short, I found no rationale for the
FCC to intrude into these negotiations. 

 

            I dissent to today's item because I believe the legal and
factual justifications for this new decision---concerning the
negotiations between existing franchise holders and local
governments---are even weaker.  And they are even more contrary to good
government.  If our previous decision was a body blow to the principle
of federalism, today's decision is the *coup de grace*. 

 

            As I explained in my prior statement, the record before us
at that time did not contain sufficient granularity to convince me that
the process for competitive entry into the video market was fatally
flawed.  Nor could I find sufficient justification in the plain language
of the statute for the FCC to insert itself into the franchise
negotiation process.  I instead read Congress's words as indicating that
negotiations should be conducted between companies and Local Franchise
Authorities, with legal disputes to be adjudicated by federal district
courts.

 

            I find today's *Order* to be even ***more*** intrusive into
traditional prerogatives of local franchising authorities than our prior
*Order*, while simultaneously ***less*** persuasive about the policy or
legal grounds for taking such a step.  To begin with, I do not see any
evidence in the record that existing franchise operators are facing
meaningful competitive disadvantages or barriers.  And our decision
today certainly does not have the virtue of introducing new competition
to the market.  Rather, it addresses---and changes---an existing
negotiation process that is respectful of the principles of federalism
and that appears to be working well today.  If it ain't broke, why are
we fixing it? 

 

            My concern about today's decision is not just
philosophical.  As the record indicates, one possible consequence of
this new set of regulations may be to deprive American consumers of
access to PEG channels that serve important community needs.  Another
effect may be to deprive local governments of access to I-Net facilities
that support public safety and other important government operations. 
Finally, this decision opens the Commission to enormous legal risk.  Why
incur such results when Congress provided a workable process for
incumbent video providers and LFAs to negotiate with each other for
franchises, with recourse to federal district courts if disagreements
arose? 

 

            In conclusion, I certainly understand my colleagues'
interest in establishing regulatory parity between different video
services providers.  Parity is an important value and I generally
support it.  But this is parity moving in the wrong direction.  It is
parity undercutting good policy; parity denying generations of
productive state and local relationships; and parity that will harm
consumers, localities and public safety, among others.  It represents
exactly the sort of unexpected---or at least unpublicized---consequences
that flow from our original mistaken franchising decision.  Though the
genie is out of the bottle for now, I hope that at some point my
colleagues and I will consider removing the Commission from the field of
local franchise regulation---where we are not welcome and have no reason
to be.