6th Circuit Affirms Portions of Localities' Appeal of FCC Local Franchise Orders

The FCC offers no valid reason for its application of the mixed-use rule to stop local franchising authorities regulating the provision of non-telco services by incumbent cable TV operators, the 6th U.S. Circuit Court of Appeals ruled (in Pacer) Wednesday. Montgomery and Anne Arundel counties, Maryland, and Dubuque, Iowa, challenged 2007 and 2015 agency orders on video franchising rules on several bases. The three-judge panel -- David McKeague, Richard Griffin and Raymond Kethledge, with the decision penned by Kethledge -- granted in part the appeal and denied it in other areas, such as by finding the agency didn't create a regulatory gap and didn't unduly burden small entities.

The decision remanded extending the mixed-use rule to incumbent carriers, which the 6th Circuit deemed arbitrary and capricious. The judges vacated that rule as applied to incumbents. "We have one set of regulators litigating against another. Over the last ten years," three FCC orders "together establish a series of rules governing how local governments may regulate cable companies and cable services," wrote Kethledge. "We agree with some of those criticisms, and thus grant the petition in part and deny it in part."

The agency didn't immediately comment.