Ten days after initial comments on proposed standard are filed, turns out there’s a different standard in the works
Talk about moving targets! The FCC has just extended (to August 1, 2011) the reply comment deadline in its CALM Act proceeding. (For a trip down Memory Lane vis-à-vis the CALM Act, click here.) The original reply comments deadline had been July 18, but that had been extended at the last minute to July 21.
But the deadline, while obviously fluid, is not the most important moving target here.
The latest extension was granted at the request of the Advanced Television Systems Committee, Inc. (ATSC). ATSC, of course, are the folks who brought us the DTV technical standards. Those standards include the A/85 Recommended Practice (A/85 RP) which Congress has ordered the Commission to use as the regulatory standard for controlling loud commercials. But get this – according to ATSC’s request for extension of the reply comment deadline, a new version of the A/85 RP is going to be approved (by ATSC) on July 26. (The Commission reports that the new A/85 RP will be available for review on the ATSC’s website on that date.)
So it turns out that all the folks who filed comments addressing the proposed mandatory standard were addressing a standard that won’t be applicable after July 26.
Remind us again what the point of filing those initial comments was?
Of course, the new A/85 RP may not be substantially different from the old one. We won’t know for sure because, as matters now stand, interested parties won’t get their first official look at the revised A/85 RP until July 26. Hey, isn’t that a tad late? No worries, since folks will now have until August 1 – that’s six days, total, including a weekend – to prepare and submit comments on it. Get out the Red Bull and stock up on No-Doz.
The Commission’s stuck between a rock and a hard place when it comes to the CALM Act. Congress has told the FCC (a) what to do (i.e., incorporate the A/85 RP into the rules, and then enforce it), and (b) when to do it by (i.e., December 15, 2011). But, through the Administrative Procedure Act, Congress has also instructed the FCC to engage in a notice-and-comment rulemaking proceeding as part of the process. Such a proceeding is designed – in theory, at least – to provide interested parties a meaningful opportunity to chip in their two cents’ worth on the proposed rule change.
When the guts of the proposed rule revision change on the eve of the final reply comment deadline (i.e., after comments have been filed), and when interested parties are then given less than a week to track down the revised proposal and get their thoughts together about it, it’s difficult to see that as a meaningful opportunity to comment. Rather, the Commission’s activities begin to resemble a parody of the administrative process.
Again, this is not entirely the Commission’s fault. But the Commission might have at least pretended to care about the interests of commenters by providing another week or two.