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FCC's Rulemaking Procedures Clarified: Errata Cannot Change DTV Standards Without Public Comment

1999

Mentioned: Gordon Godfrey

Summary

A reader corrects an August 1999 article about Sinclair's DTV challenge, clarifying that the FCC cannot alter substantive DTV standards rules through an erratum under the Administrative Procedure Act. Any substantive rule change requires a Notice of Proposed Rulemaking and public comment period under Title 5 of the U.S. Code, Section 553.

ERRATA

Position of FCC Clarified

Dale -

I thought you would want to know that your article dated August 9 entitled "A Sinclair Update for August 9, 1999" contains erroneous information about the FCC's procedures. The type of "error" which the FCC staff can correct is not as you portray it.

Under the Administrative Procesure Act (APA) there is no situation in which the FCC can change its substantive rules on the DTV standard without issuing a Notice of Proposed Rulemaking and provide an opportunity for public comment. This is pursuant to title 5 of the U.S. Code, Section 553.

An "error" means just that - an unintended administrative "mistake", such as if a rule amendment in the appendix did not reflect the Commission's decision as stated in the accompanying Report and Order; or vice versa; or if directly conflicting language or rules were issued. An erratum can be issued to correct errors, but not to change a substantive decision made by the Commission. (There are limited exceptions provided in Section 553, none of which are remotely applicable to the DTV standards issue addressed in your article.)

Because you cite FCC staffer Gordon Godfrey in your article, this error might be attributed mistakenly to him.

Thought you would want to know.

All the Best,