Broadcasters and media consolidation opponents weighed in Monday (May 17) with an earful for the Third Circuit Court of Appeals on the FCC's 2007 media ownership rule revise. Both sides could agree on one thing: the FCC's decision was arbitrary, capricious and essentially unjustifiable.
Monday was the deadline for briefs in that court's hearing of challenges to the FCC's 2007 decision, under Chairman Kevin Martin, only to loosen the ban on newspaper-broadcast crossownership rather than adopt any other deregulatory proposals from the 2003 FCC deregulatory ownership rule rewrite under then-Chairman Michael Powell.
Broadcasters and newspaper owners challenged the decision as not going far enough to deregulate hurting industries, while media consoliation foes argued that even loosening the ban was one deregulatory step too many in an already consolidated marketplace.
"This court cannot uphold the commission’s failure to meaningfully review its outdated broadcast ownership restrictions," said the National Association of Broadcasters in summing up its argument for getting rid of the crossownership rule, as well as caps on local radio and TV station ownership.
NAB said the FCC had not justified what it called an "abrupt reversal" from the 2003 commission's conclusion that local TV ownership rules (like crossownership limits and the duopoly rule) advance competition. Echoing a charge labeled at the FCC for everything from BitTorrent to Janet Jackson, NAB said the FCC's decision in 2007 was "arbitrary and capricious" and asked the court to throw it out.
In a separate filing CBS, newly re-upped as an NAB member (it exited a decade ago over ownership rule issues) echoed NAB. "The commission reimposed the very radio/television cross-ownership limits that it had determined in its 2003 order were unnecessary and that it was required to repeal," said CBS.
CBS also put in a plug for getting rid of the dual network rule, which prevents any of the Big Four nets from combining with any other. It pointed out that the FCC had singled out those nets for disparate treatment, which it said was arbitrary.
Finally, CBS argued that the ownership rules are actually content-based restrictions that violate the First
Amendment since they apply only to broadcasters and their content. "The content-based preferences embodied in the rules, ostensibly to promote localism and diversity, simply have no place in the current vibrant, competitive market in which there is no shortage of media outlets."
Consolidating their arguments, the Newspaper Association of America teamed with Belo, Gannett and Bonneville to weigh in with the court. They took aim at what they called the "arcane and stringent" waiver standards in the FCC's 2007 decision, suggesting that rather than loosening the ban--the FCC said it would presume such combos were in the public interest in the top 20 markets subject to meeting some public interest conditions--the commission had in essence retained the blanket restriction, just with new waiver conditions. There had always been the possibility for a waiver on an ad hoc basis.
On the other side of the argument, Media Access Project (MAP), Free Press, United Church of Christ and Prometheus Radio Project said the the FCC's decision to relax the crossownership rule failed to meet the minimum standards for informed and rational agency action. The Institute for Public Representation at Georgetown University (one of two key authors of the brief, along with MAP) is not mentioned, and neither is their client, Media Alliance.
They pointed to the fact that the commission voted only days after hundreds of comments had been filed that "could not possibly" have been taken into account. Even the item that was voted included changes circulated only hours before the vote.
As to the decision, MAP said that the FCC had significantly weakened its cross-ownership rule and without regard to its potential impact on minority and female media ownership. Both broadcasters and MAP and company at least agreed that the FCC decision was arbitrary and capricious. Or as MAP put it: "The Commission did not just act in a manner contrary to the Administrative Procedure Act; it acted contrary to basic notions of fairness and common sense, as well."
Oral argument has not yet been scheduled in the case. Meanwhile, FCC officials have said they hope to complete their independent, congressionally mandated review of those same media ownership rules by year's end. It is unclear how those paralell tracks will be resolved.