In a defeat for broadcasters, the Third Circuit Court of Appeals Friday said its stay of the FCC's media ownership rule rewrite would remain in place, saying it wanted to hear back from the parties to the case on Oct. 1.
The stay has been in place for about six years, dating from the FCC's first attempt to rewrite the ownership rules back in 2003 under then-chairman Michael Powell, but more recently extended to the loosening of the newspaper-broadcast crossownership rules in December 2007, under then FCC Chairman Kevin Martin, which were almost immediately challenged in court by both sides of the issue.
"Upon consideration of the responses to the Court’s order, the stay will remain in effect pending further order of the Court," Chief Judge Anthony Sirica wrote Friday, according to a copy of the decision. "The parties are directed to file status reports on Oct. 1, 2009, including whether the stay should be lifted."
"The parties are further directed promptly advise this Court of any intervening developments before the agency."
The agency is the FCC, which last month asked the court not to lift the stay because it was still deciding whether to modify the rules and said there could be "further proceedings." The FCC in April had reversed an earlier position and said it would no longer oppose a petition by public interest groups including Free Press, Prometheus Radio and United Church of Christ, to hold the case in abeyance pending new FCC leadership.
Among those opposing delaying a court decision were the Newspaper Association of America, Media General, Tribune, CBS, Fox, Gannett and a number of other broadcast groups, who have for years been trying to get some regulatory certainty, though they were looking for the FCC to lift rather than modify the ban. In fact, they challenged the rules in court as not sufficiently deregulatory.
In a letter to the court May 5, FCC Acting General Counsel Michele Elison did not say the FCC would definitely review the rule change, which loosened the ban on newspaper-broadcast crossownership to allow them, under certain circumstances, in the top 20 markets, and perhaps smaller markets under a waiver policy.
But she did reiterate that the majority on the commission does not support that December 2008 order loosening the ban.
"The current Commission is in the process of determining whether to reconsider or otherwise modify the newspaper/broadcast crossownership rules contained in its 2008 order. Because there may be further proceedings on remand, the Commission at this time supports keeping the current stay in place with respect to the revised newspaper/broadcast cross-ownership rule."
In its filing with the court, representatives of Prometheus Radio Project, which challenged the ownership rule change as too deregulatory, told the court the stay should remain in place because the FCC is likely to modify the rule change on reconsideration. And if it doesn't, because the court will likely reverse it as arbitrary and capricious.
"This isn't a surprise, at least to us," said Andrew Schwartzman of Media Access Project. "The Court is signalling that it continues to have problems with what the "old" FCC did."