Fox & Friends Seek High Court Challenge

Petition argues that spectrum scarcity rationale underpinning media ownership rules should be overturned

By John Eggerton -- Broadcasting & Cable, 12/6/2011 11:03:21 AM

Tribune, Sinclair, Bonneville, The Scranton Times, Clear Channel, Morris Communications, and the Newspaper Association of America all joined with Fox (News Corp.) Monday to challenge not only the FCC's media ownership rules, but the spectrum scarcity rationale for media ownership regs in general.
 
In their petition that the High Court review, and overturn, the Third Circuit's decision upholding most of the FCC's media ownership rules, Fox and legal friends argue that the spectrum scarcity rationale underpinning the media ownership rules (and other regs) should be overturned -- it stems from the Supreme Court's own decision in the Red Lion case, and that, in any case, the newspaper-broadcast cross-ownership restriction violates the First Amendment and Fifth Amendment because it singles out newspapers.
 
"The time has come for the Court to intercede and restore the full protections of the First Amendment to broadcasters," said the petitioners. "[T]he scarcity doctrine expired long ago," they said, citing a revolution in media delivery since the early 1970s when Red Lion was decided.
 
The National Association of Broadcasters filed separately, but confined its brief to asking the court to settle the narrower questions of which Federal Appeals court and media ownership call was correct -- the Third Circuit, which upheld the FCC's local ownership caps, or the D.C. Circuit, which  previously held that the duopoly rule was arbitrary and capricious.
 
Media General also filed a cert petition, saying the court needed to consider whether media restrictions directed at promoting viewpoint diversity are content-neutral -- Media General suggests they are not -- and whether regs targeted at newspapers were judged on too loose a standard by the Third Circuit. It also wants the court to throw out the scarcity rationale.