No Hard, or Fast Rules on Media Ownership

By John Eggerton
Broadcasting & Cable, 5/24/2010

FCC, court keep juggling rule changes

FOR ALL the talk of the digital age and the changes wrought by multiple platforms, the arguments over the FCC’s media-ownership rules continue to be divided along decidedly historic lines.

Broadcasters keep pushing the FCC to get rid of a bunch of structural regulations that limit how many stations they can own, and where.

Meanwhile, consolidation foes say the next proposed deregulatory move is already one too many.

Any final resolution on changes to TV or radio-station ownership rules, however, could wind up being a split decision if a federal court moves the issue one way and the FCC goes another. And that decision could take some time, all the while providing none of the regulatory safeguards broadcasters have been seeking for more than a decade.

Last week, the Third Circuit Court of Appeals—the same court that put a hold on the FCC’s far more deregulatory rewrite of its ownership rules in 2003—collected the first round of briefs in a boatload of challenges to the FCC’s 2007 rule rewrite. The 2003 rewrite loosened the newspaper-broadcast cross-ownership rules just enough to anger consolidation activists, but not nearly enough to appease broadcasters and newspaper owners. Broadcasters weighed in on the issue in droves, but by all appearances this still has the look of a pitcher’s duel, and one that could easily go to extra innings. For the most part, broadcasters aren’t looking to heavy up on stations. And the FCC is pushing broadcasters to reduce their stake in spectrum, not increase it.

But lifting the limits is not necessarily about building large groups. Broadcasters have been arguing, in fact, that this multiplatform synergy will most benefit smaller groups or individual stations in smaller markets currently denied deals with both newspapers and other stations.

It is unclear when the pivotal Third Circuit will hear oral arguments in the case; after that, it could be months before a decision is made.

Meanwhile, the FCC on a separate track is looking at all of its media-ownership rules as part of its regularly scheduled, congressionally mandated review. Depending on the timing of that review—FCC officials have said it was on track to be completed by the end of the year—the commission may make new changes to the rules even before the court passes judgment on its change to the old ones.

“You have the last decision under review while [the FCC] is considering what to do with the new one,” says one broadcast attorney who asked not to be named.

That said, more than one broadcast attorney who deals with the FCC says that an end-of-the-year deadline looks increasingly unlikely. John Crigler, a partner at Garvey Schuber Barer, gives the FCC no chance of providing regulatory certainty anytime soon. “The FCC has never kept to a timetable,” he says. “Even with broadband, they had to squeal for an extension.”

In the meantime, the industry will have to rely on what the attorneys call “synthetic duopolies,” the joint services agreements and joint marketing deals that they concede the FCC has been fairly liberal in granting.

On the other side of the argument, Media Access Project (MAP), Free Press, United Church of Christ and Prometheus Radio Project said the the FCC's decision to relax the crossownership rule failed to meet the minimum standards for informed and rational agency action.

The Institute for Public Representation at Georgetown University (one of two key authors of the brief, along with MAP) is not mentioned, and neither is their client, Media Alliance.

They pointed to the fact that the commission voted only days after hundreds of comments had been filed that "could not possibly" have been taken into account. Even the item that was voted included changes circulated only hours before the vote.

Note: Public interest groups and trade unions are active in opposing shared services agreements, duopolies, "synthetic" or otherwise. Media consolidation reduces the number of diverse voices in news coverage, which is a danger to any democratic society. - Bob Daraio , Broadcast Union News