Passage of 39% Cap No Sure Thing

Opponents could force renegotiation of compromise limit
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A chastened rank and file of the House of Representatives last week meekly agreed to increase the national TV-ownership cap, but the next rounds in the fight over broadcast networks' audience reach won't be as easy for fans of deregulation.

The Senate faces a potentially lengthy battle over a deal to set the cap at 39% of television households, as well as many other controversial provisions contained in a giant $328 billion spending bill that funds 11 federal agencies.

Although the Senate is expected to pass the omnibus package in late January, Democrats opposing the bill can't be counted out in their effort to successfully filibuster the bill. If they can keep a disciplined 41-member bloc from letting the bill come to a vote, congressional leaders may be forced to renegotiate the compromise Republican leaders negotiated with the White House, and the fate of the 39% limit becomes unpredictable.

A bipartisan majority on both sides of Capitol Hill have opposed the FCC's June 2 decision to lift the cap from 35% to 45%, but Republican leaders and the White House have used parliamentary maneuvers to stymie opponents of media concentration. Under a veto threat from the White House, Republican leaders tossed out a House/Senate agreement to include a 35% rollback in the appropriations bill and settled on the 39% limit, which would save both CBS and Fox the trouble of divesting some recently acquired stations.

An early indication of the work facing Senate Majority Leader Bill Frist (R-Tenn.) in breaking a filibuster came last week when Sen. Robert Byrd (D-W.Va.) effortlessly built a coalition against quick passage.

"The White House is boosting special corporate interests at the expense of the people's interest for balanced news and information," Byrd exclaimed on the Senate floor Dec. 9, shortly after Frist asked to pass the omnibus appropriations package without a roll-call vote.
When Byrd and Minority Leader Tom Daschle (D-S.D.) objected, Frist had no choice but to postpone a vote until after the senators return Jan. 20.

To keep the issue on lawmakers' minds during the next month, anti-deregulation activists from MoveOn.org bought newspaper ads calling the 39% deal a giveaway to Fox owner Rupert Murdoch. "Apparently no one is more deserving than Rupert Murdoch and his fellow network moguls," one ad read. "Despite the wishes of Congress and the vast majority of Americans ... the biggest networks will be able to acquire more of the hugely profitable local stations they desire."

But the action won't all be in Congress. Federal appeals judges will tackle the ownership cap and other broadcast-ownership limitations Feb. 11 when it hears arguments in a case challenging the FCC's relaxation of national and local broadcast limits.

Last week's House action, while not a victory for opponents of deregulation, at least allows them to focus their courtroom attack

entirely on the network's bid to eliminate the cap rather than diluting it with a separate fight against the FCC's bid to lift it to 45%. Now that Congress is reaffirming a commitment to the cap as a general principle and has set a specific limit, the bid to retain the 35% limit in court "is probably moot," said Media Access Project's Andrew Schwartzman.

Recognizing that sea change, the attorneys for Georgetown University's Institute for Public Representation sided in a "friend of the court" brief with the FCC in defending the national cap's preservation. Georgetown's attorneys generally opposed the FCC's deregulation. The FCC's brief defending its June 2 vote was submitted to the federal appeals court in Philadelphia last week.

Washington attorneys are also grappling with uncertainty over exactly how "permanent" the 39% limit, brokered by Sen. Ted Stevens (R-Alaska), would be. The Appropriations Committee chairman trumpeted that the deal would eliminate FCC authority to change the national ownership limit and preserve that power for Congress. "We now have control over the future," he said when the deal was reached Nov. 24.

But a close read of the spending bill's provision isn't so clear. Yes, the FCC is no longer obligated to review the national cap in its periodic reviews of ownership rule. But some interpreters believe the FCC could change the limit on its own volition if a future chairman wanted.

"It can go both ways," Schwartzman said. His analysis was echoed by some commissioners' aides.

An aide to FCC Chairman Michael Powell, however, would say only that the legal language "is being reviewed."

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