The FCC Wednesday filed a brief with the Third Circuit Court of
Appeals defending its authority under then-Chairman Kevin Martin to loosen the
newspaper-broadcast cross-ownership ban.
The court is currently hearing the challenge to that ruling from
both sides of the issue. Broadcasters argue that the FCC did not go far enough
and should have lifted the ban and addressed other rules like duopolies and
local station ownership caps. Media consolidation foes argued that any more
deregulation was too much.
In its defense, FCC General Counsel Austin Schlick argued in
the brief that it was reasonable to relax the rules in the top 20 markets
because "combinations â€˜generally raise fewer diversity concerns' in the
top 20 markets because those markets 'have more media outlets.'" The FCC brief
describes the change as modest. The commission brief also defended the Martin
commission decision not to scrap the ban. "To protect against the
realistic prospect that consolidation of media outlets in some instances could
harm viewpoint diversity, the Commission adopted a presumption against newspaper/broadcast
cross-ownership in markets below the top 20," it said.
But the FCC defended its power and asked the court to either drop
deny the petitions or uphold the FCC decision if it did not. It was not meant
to be an endorsement of that policy per se, only of the legality of the
pre-Genachowski FCC's decision to adopt it.
The commission has indicated it could change as part of its
separate, congressionally mandated review of all its ownership rules.
In a statement on the FCC's filing, FCC Chairman
Julius Genachowski provided no endorsement of the substance of the
"Today our General Counsel filed a brief in the U.S
Court of Appeals for the Third Circuit defending the Commission's authority to
make the changes to our media ownership rules that the Commission adopted in
2008," he said in a statement. "While the rules being challenged were
adopted before I became Chairman, I support our General Counsel in arguing that the order was within the discretion of the
Commission and the brief's general defense of the Commission's authority to
make decisions based on the information before it at the time."
Genachowksi pointed to the FCC's current rule review as well,
adding: "[T]he agency is in the middle of the 2010 ownership review. The
review requires us to look at any changed facts in the marketplace based on a
record which the Commission is now assembling."
That explanation notwithstanding, consolidation foes, including
FCC Commissioner Michael Copps, took the commission to task for its defense.
"It is difficult for me to believe that our new FCC, with its new
majority, is in court today basically accepting the validity of the
pro-consolidation decision of a previous Commission," said Copps. "We have
had 18 months to reconsider the awful vote that loosened our
newspaper-broadcast cross ownership rules, but the best we can do, judging from
today's brief, is to kick the media ownership can farther down the road."
"Media Access Project is, to put it mildly, disappointed that the
FCC majority is defending Kevin Martin's highly deregulatory decision with
respect to the Newspaper Broadcast Cross-Ownership rule," said Media
Access Project SVP Andrew Schwartzman. And while the FCC did defend its
decision not to loosen radio/TV cross-ownership rules or local market
limits, Schwartzman is concerned those could be at risk. "This unfortunate
aspect of the Commission's brief will undermine the FCC's ability to defend
those portions of its 2007 decision which rightly opted to maintain other
television and radio ownership rules in their existing form. The consequences
of the FCC's position in this brief could have seriously adverse effects on the
diversity of ownership and programming in media."
Joining the chorus of boos was Free Press. "We are disappointed
that Chairman Genachowski directed the agency to defend a
defective NBCO rule that has been widely criticized both for its substance
and for the manner in which it was adopted," said Free Press Policy Counsel Corie