With the clock ticking on two members' terms, last week, the FCC's four sitting commissioners began jockeying to influence approval of Fox Television's $5.4 billion purchase of the Chris-Craft TV group.
The agency's Mass Media Bureau presented the five FCC commissioners with two main options for dealing with News Corp.'s petition to keep the New York Post after the media giant's Fox Television adds a second TV station to its Big Apple holdings. The move is controversial because News Corp. already has a waiver of the ban on broadcast/ newspaper crossownership, allowing it to own WNYW-TV. Consumer groups don't want the waiver expanded to a duopoly created by the addition of Chris-Craft's WWOR-TV there.
The two primary options for settling the debate: Condition the Post's fate on the outcome of the FCC's planned review of the newspaper/crossownership ban, or set a firm date for divesting the Post regardless of the rulemaking's outcome.
There's virtually no chance the FCC will block the deal, so consumer groups want a set deadline that Fox would be obligated to honor even if the crossownership ban were lifted.
Presuming the FCC eventually will eliminate or greatly relax the restriction, Fox wants the waiver contingent on crossownership rule changes.
Chances for the deadline rose last week, however, when agency Chairman Michael Powell postponed the crossownership rulemaking, according to Christopher Day, the Georgetown University Law Center attorney representing the consumer groups. Generally, merger conditions are made contingent on the outcome of rulemakings under way, but, with the crossownership review still in the starting gate, he said, Fox's bid for such favorable treatment may be diminished.
Powell appeared unconcerned about the delay in the general rulemaking and his inability to settle differences between his colleagues, but he is likely to fight delays that would cause uncertainty for the merged station groups.
Commissioner Susan Ness, slated to step down by June 1, is pressing for a fixed deadline, according to industry and FCC sources. If she can get fellow Democrat Gloria Tristani to go along, she's likely to gain Powell's support and the needed three-vote majority.
If Tristani opposes the deal, Republican Harold Furchtgott-Roth can wait for Ness to leave. Then, only two votes will be needed for a majority, increasing chances that Powell will agree to a more open-ended deadline.
Powell's other option is to delay the merger vote until this summer, when new commissioners are sworn in—just as he is expected to do with the broader general crossownership review. That's not an option he is likely to prefer because he has pledged to speed up FCC merger reviews and because of last week's expiration of the deal's 180-day timetable, which was imposed by the agency.
Last week's decision to delay the general rulemaking shows how the ideological divisions on the FCC can gum up even a seemingly benign request for public input. Powell, determined not to be viewed as prejudging the issue, won Ness' support for a generally worded review that left the fate of the rule up for grabs. But Furchtgott-Roth refused to provide the majority unless the proposal strongly implied that the ban would be removed. Tristani, on the other hand, remained determined to vote no on any suggestion the rule might be eliminated.
Despite his best efforts to appear undecided, Powell said, in an interview last week, that supporters of preserving the rules bear the burden of proving their worth. "Tie goes to deregulation," he said, noting that more than 50 broadcast/newspaper-grandfathered combos remain and nearly 10 waivers have been issued since the rule was set in 1975. "This commission regularly found compelling circumstances to waive the rule on a case-by-case basis."