Time to Reevaluate—Again

What's different about the media ownership landscape after last Thursday's appeals court decision? Nothing, and everything.

Nothing, because it maintains the status quo. The FCC's June 2, 2003, rules never went into effect, and they still haven't. Owners can own just as many stations today as they could last week.

Everything, because this court wasn't buying the FCC's big arguments, including that the commission had no choice but to deregulate. The court had a judicial laugh about the FCC's "diversity index" as a guide to deregulation. Dejected, Chairman Michael Powell said afterward the court "sets near impossible standards for justifying bright-line ownership limits."

Given the mangled history of setting those ownership rules, it must be frustrating for Powell to be sent back to square one. Perhaps, though, it is time to go to the town square. Commissioners Michael Copps and Jonathan Adelstein have argued that much more public input should have gone into the rules in the first place; the regulations were not put out for public notice.

Powell would prefer to keep the examination of local content—like public-interest obligations in the digital age—separate from the structural regulations that are in play in the ownership-reg review. Any day now, he plans to release the results of his much ballyhooed notice of inquiry on the subject. But isolating how broadcasters invest in their community from how much they are able to invest in buying stations may no longer be possible.

The industry desperately needs solid points of reference, like rules that are actually rules rather than ones in constant state of judicial dismantling. A little more talking and listening would help before the commission tries for a third time to get real-world rules past the courts.

Indeed, the more we hear from the rank-and-file broadcaster, the more apparent it becomes that, while consolidation's gains are measured in big bucks to top executives and stockholders, its losses are often measured in a certain diminished quality of life, both in the industry and outside it. Broadcasting's power is its localism, after all.

One irony of the decision is that it leaves the networks relatively unscathed, while snatching away the small-market dereg that would have benefited affiliate-group owners. It was the high-octane attack on the networks by station owners complaining of strong-arm tactics that helped fuel the backlash against media ownership. "They tried to screw us," snickered one network exec, "and wound up screwing themselves."

Maybe it's not just the FCC that needs to reevaluate its actions. While we think that responsible broadcasters deserve a light regulatory hand and the freedom to conduct their businesses as profitably and efficiently as possible, broadcasters' side of the bargain is not to abuse that power or break faith with the people they employ or the publics they serve. As the FCC huddles to decide how to justify its rules, the industry ought to take the same opportunity to examine the behavior that prompted the backlash in the first place.