Appeals Court Delays Hearing Tribune’s Waiver Challenge

U.S. Court of Appeals for the D.C. Circuit Puts Off Hearing Tribune's challenge of FCC's Decision to Grant It Waivers to Complete Deal to Sell Company to Sam Zell, Tribune Employees

By John Eggerton -- Broadcasting & Cable, 5/8/2008 10:40:00 AM

The U.S. Court of Appeals for the D.C. Circuit decided to put off hearing Tribune's challenge of the Federal Communications Commission's decision to grant it waivers to complete the deal to sell the company to investor Sam Zell and Tribune employees.

Tribune asked the commission for indefinite waivers and instead got two-year waivers, or six months after the end of any litigation over the waivers. At the time, FCC Democrats saw that as giving Tribune an invitation to take the entire rule to court, which it proceeded to do only days later.

On Wednesday, the court decided to hold off on hearing the Tribune challenge, or a motion by media activists to dismiss, until the FCC rules on a petition by those activists -- which include the United Church of Christ and Media Alliance -- to reconsider its decision to approve the deal.

The court told the commission to provide a status report on its reconsideration within 60 days.

The court also asked the parties for more information on UCC’s/Media Alliance's motion to dismiss the case on jurisdictional grounds. They argued that since the FCC granted the transfer of control application to Zell et. al., the court had no jurisdiction to hear the case.

They also argued that the issue, which Tribune raised, of whether the cross-ownership rule is arbitrary and capricious is not ripe for review and should be reviewed in the Third Circuit in Philadelphia at any rate since it was in response to that court's remand that the FCC loosened the rule.

"The fact that the court asked for additional briefing on jurisdiction is quite significant," said Andrew J. Schwartzman of Media Access Project, an attorney for Alliance. "Such action is infrequent and indicates that it considers the question nonfrivolous and worthy of oral argument."