As far as Sinclair Broadcast Group Inc. is concerned, the Philadelphia Appeals Court got it wrong last week when it told the Federal Communications Commission to continue using the eight-voices test to limit concentration in local TV markets.
That test holds that nobody can own two stations in a market if it would reduce the number of independently owned stations to fewer than eight.
Sinclair, which has been trying to bulk up in markets where it is currently prohibited from doing so, points out that in its earlier challenge to the eight-voices test (in August 2001), the D.C. circuit ruled that the FCC had to either justify the rules or get rid of them. The FCC then responded to the court that the test "is not necessary in the public interest to promote competition," Sinclair points out.
Once the FCC found that the rules were unjustifiable, says Sinclair, they were invalid. The FCC tried to replace that test as part of its then biennial review of its regs with a ban on top-four stations in a market. The Philadelphia court actually liked that idea, but by staying all the rules while the FCC recrafts them, none of the new rules are in force.
That, says Sinclair, means that there is no voices test. "The Third Circuit's order appears to be in direct contravention of the D.C. Circuit's opinion," it says.
Although a staffer close to Powell suggested similar uncertainty about the status of the eight-voices prohibition, the commission back in February, by denying Sinclair's purchase of some stations, indicated it would continue to enforce the test while the new rules were being reviewed by the Philadelphia court. Given that the court has instructed the FCC to rewrite its rules and re-submit them to the same court, that review is arguably still going on.
Sinclair had been prompted to test the FCC on the issue after Media Bureau Chief Ken Ferree mused publicly about the uncertain regulatory status when one court stays a rule found indefensible by the FCC under a remand from another court. In that case, he was referring to the 45% station cap, but Congress solved that one by legislating a 39% compromise, taking it out of the hands of both the court and the FCC.