They're Back! Prometheus Asks Court to Vacate Ownership-Rule Change

Group Says Decision Was Arbitrary and Capricious and Beyond the FCC's Authority

By John Eggerton -- Broadcasting & Cable, 2/26/2008 4:27:00 PM

As promised, anti-media consolidation activists asked a federal court to throw out the Federal Communications Commission's recent media-ownership decision.

Media Access Project Tuesday filed a petition with the U.S. Court of Appeals for the Third Circuit on behalf of Prometheus Radio Project and in opposition to loosening the newspaper-broadcast cross-ownership rules, which the FCC did Dec. 18.

Tribune already took aim at the cross-ownership rules in a separate suit against an FCC decision granting it waivers from the rules -- it asked for more regulatory relief than it got. But it is coming at the agency from the other direction: It saw the decision as a chance to try to get the cross-ownership ban lifted entirely by the courts.

MAP was instrumental in getting the FCC's 2003 ownership-rule rewrite remanded to that court in the first place when it represented Prometheus in a filing to block that deregualtory effort. The result of that, after years of legal maneuvers and rule reviews, was eventually that December 2007 decision to loosen, but not lift, the newspaper-broadcast cross-ownership rules. But there is more for MAP to like in the rule rewrite this time around.

The group supported the FCC majority's decision not to loosen the local TV or radio ownership caps. "We are going to be very supportive of some of the things the commission did," MAP president Andrew J. Schwartzman said. But loosening newspaper-broadcast cross-ownership was not one of them and it made that clear in no uncertain terms. In its petition, the group called the decision "contrary to law" and "otherwise arbitrary and capricious, an abuse of discretion and in excess of statutory authority."

MAP asked the court to "vacate, enjoin and set aside the report and order and order such other relief as may be just and proper."

MAP expects broadcasters to take the decision to court, too. They will likely argue that the FCC was wrong in not deregulating the TV and radio ownership caps while it was at it.

FCC chairman Kevin Martin has said that he listened to the voice of the people at public hearings on consolidation and concluded that raising those TV and radio caps would not be in the public interest -- something broadcasters generally dispute.