Network affiliates and the broadcast industry's largest trade group urged federal judges to reject a lawsuit by CBS, NBC and Fox that seeks to strike down limits on a station group's potential audience reach.
The court is not obliged to review the networks' petition until they have exhausted avenues for overturning the rule at the FCC, said the Network Affiliated Stations Alliance and the National Association of Broadcasters. Furthermore, the nets don't have standing to sue because the FCC has taken no overt action to uphold the 35% cap on TV household reach but merely issued a report to Congress suggesting that the rule be preserved, the groups said.
Rather than seek a court remedy, NAB and NASA said the nets should be required petition the FCC to eliminate or raise the cap in a full-fledged rulemaking. They say the networks also are incorrect by asserting that the broadcast cap was "plucked out of thin air," and arguing that the logic of a decision two months ago throwing out the 30% cap on a cable companies share of pay-TV subscribers should be extended to broadcast station. The broadcast cap, the groups note, was set by Congress and courts must give more deference to statutes than to agency regulations.
Oral arguments are scheduled for Sept. 7 in the federal appeals court in Washington. NASA and the NAB are locked in a bitter dispute with the nets over raising the cap. The trade groups says affiliates will lose their leverage to negotiate contracts if networks are allowed to buy more O&Os.
Finally the trade organizations urged the court to uphold the prohibition barring cable systems from owning broadcast stations in their local markets. Time Warner Cable's suit alleges the cable cross-ownership ban is an infringement on free speech. The cross-ownership case has been consolidated with the broadcast cap. - Bill McConnell