Flood of Filings Challenges FCC’s Cross-Ownership Decision

More than One-Dozen Lawsuits Filed vs. Federal Communications Commission’s Dec. 18 Decision to Loosen Newspaper/Broadcast Cross-Ownership Ban

By John Eggerton -- Broadcasting & Cable, 3/10/2008 2:08:00 PM

The legal floodgates opened in the wake of the Federal Communications Commission’s Dec. 18 decision to loosen the newspaper/broadcast cross-ownership ban.

According to a letter from the FCC to the Judicial Panel on Multidistrict Litigation of Multicircuit Petitions for Review, more than one-dozen lawsuits were filed against the rules from both anti-consolidation activists that said it went too far to broadcasters that said it didn’t go far enough.

Media Access Project president Andrew J. Schwartzman, who filed one of them, said the number is closer to 20, including dual filings by petitions taking two legal routes to essentially the same challenge, as well as ones that didn’t make the FCC’s 10-day cutoff for reporting to the panel -- essentially a group of judges who will decide what court will hear the case.

The challenges were filed in at least five separate circuits. Broadcasters stuck with the D.C. Circuit, though, to be friendlier to their consolidation cause, while media activists filed in various circuits -- Ninth, Sixth, First -- while saying that the appeals should all be funneled to the Third Circuit, which remanded the FCC’s deregulatory 2003 rules back to the commission for better justification.

Most broadcasters said the committee should hold a lottery to see which court draws the short straw.

The new ownership rule allows for the ownership of a TV or radio station and a newspaper in the top 20 markets under certain conditions and presumes that such combinations are not in the public interest in smaller markets, although waivers will be considered on a case-by-case basis.

Commission Democrats saw that waiver policy as a huge loophole, but FCC chairman Kevin Martin has said that it is meant to be a hurdle.

After the rules were published in the Federal Register Feb. 21, the FCC had 10 days to collect information on who was suing it where, then turn over that list to the judicial conference.

The list is a long one: Prometheus Radio Project; Free Press; the Newspaper Association of America; Tribune; the Media Alliance; the United Church of Christ; Fox; Sinclair Broadcast Group; Bonneville International; The Times-Tribune of Scranton, Pa.; Cox Broadcasting, Media General, the National Association of Broadcasters; and a Raycom Media/small-market TV-station coalition.

Somewhat ironically, Martin billed the vote to loosen only the cross-ownership rule, and not local TV or radio caps, as a moderate step and responsive to activist concerns about media consolidation. The FCC’s 2003 rule rewrite was more deregulatory, which those activists conceded, but they also said any more deregulation is too much.