NAB Pushes Supremes for Review


In its request for Supreme Court review of the remanded Federal Communications Commission ownership rules, the National Association of Broadcasters took aim at a new rule and an old rule that the court left intact.

Petitions to review the rules were due Jan. 31.

The Third Circuit appeals court in Philadelphia stayed and remanded the FCC's new ownership rules, which had been adopted in June 2003 but never enacted due to a stay and the eventual remand.

In sending the rules back to the FCC for changes and better justification, the court left intact the tightening of some radio rules in smaller markets and the FCC's rule change in 1999 to limit loosened TV duopoly rules by preventing such combos between two of the top four stations in a market.

NAB told the High Court in its petition that the rules should be reviewed because those regulatory moves were at odds with the will of Congress in its 1996 Telecommunications Act rewrite. It also pointed out that the Third Circuit remand of the rules was at odds with the First circuit (D.C.) interpretation. One of the Supreme Court's roles is to resolve apparent conflicts between lower court decisions.

Unlike a number of other petitioners, including many networks (no longer members of NAB), the NAB filing did not raise the issue of Red Lion, the Supreme Court case that buttressed spectrum scarcity as a rationale for broadcast regulation.

Other petitioners were taking the opportunity to try and get the court to revisit the entire underpinning of the FCC's regulatory regime.

Broadcasters have always had to balance freeing themselves from broadcast regulation they didn't like--ownership limits, indecency constraints--with preserving those they "benefit" from--must-carry, for example, or a public interest standard that arguably shields them from calls they be required to pay for spectrum.