FCC Likely to Soon Seek Media Ownership Studies

The FCC likely will request about ten media ownership studies from outside experts around the time it releases the forthcoming notice of inquiry (CD April 16 p3) formally starting the quadrennial review mandated by Congress for 2010, agency officials said. With revisions to the draft notice by commissioners’ offices nearing an end, it could be released within a week but may take longer, they said. The latest edition of the draft item, circulated last week, has many changes but none deemed likely to alter the course of the inquiry, they said.

One change in the latest draft of the notice written by the Media Bureau asks about the legal precedent set by challenges to earlier media ownership rules and how that affects the commission’s ability to act now, FCC officials said. Monday was the deadline for the initial round of filings at the 3rd U.S. Circuit Court of Appeals in Philadelphia to challenges to the last round of ownership rules, enshrined in a 2008 order. All but one of the filings available by our deadline opposed that order as being overly restrictive, while one from four groups said it was too deregulatory. The commission will weigh in by June 16.

It’s unclear if the FCC notice of inquiry for the 2010 review will be publicized by then, though work on the document appears to be nearing an end, agency officials said. Unlike in the days after the notice first circulated April 9, the eighth floor has recently been actively engaged in the issue and all commissioner offices except that of Chairman Julius Genachowski proposed changes to the item, they said. Aides to Genachowski have acknowledged recently that the current review may not be complete this year, as mandated by Congress, but instead in early 2011 (CD May 13 p17).

Completion of the proceeding in the first quarter seems far more likely than this year, an agency official not in Genachowski’s office said. The revised draft inquiry also asks more about ownership of news websites, another agency official said. An official noted there were more than a dozen changes. A bureau spokeswoman declined to comment.

The FCC will issue a request for proposals (RFP) for expert studies on media ownership around the time when the notice of inquiry is issued, agency officials said. The regulator probably will request a similar number of studies as it did in the last review, when 10 were done, they said. They said it’s unclear what subjects the studies will cover, though they'll likely be similar to those tackled in the 2006 studies, available at http://xrl.us/bhk8i8. “The fact that they're going to publish RFPs and let people respond to them injects a level of transparency that is unprecedented compared to what [Michael] Powell and [Kevin] Martin did” when they were chairmen, said Research Director Mark Cooper of the Consumer Federation of America, who was critical of the 2006 studies. “Almost anything would have been better than last time” when the agency “knew what they wanted to find, they hired people to find it” and violated the Data Quality Act, Cooper said.

The 3rd Circuit should throw out local TV ownership rules, said NAB in a draft filing to the court. That rule is arbitrary and capricious because the commission counts only TV stations as “voices” in a market -- the same approach that the 2002 Sinclair case by the U.S. Appeals Court for the D.C. Circuit remanded to the FCC, the group said. That violates Section 202(h) of the 1996 Telecom Act, the filing said. “The evidence in the record overwhelmingly showed that local television stations compete for audiences with cable operators, satellite operators, and Internet outlets, and not merely with other television stations.” The commission was right to find in its 2008 order, as it did in 2003, that banning in all instances ownership of a daily newspaper and radio or TV station in the same market wasn’t needed, the NAB said. “The 2008 order effects only a very modest relaxation of the complete ban.” The final version of NAB’s filing wasn’t available at our deadline, a spokesman for the group said.

Clear Channel also pointed to Section 202(h) in asking the 3rd Circuit set aside local radio ownership limits. “The Commission has steadfastly refused, in the course of four periodic media ownership reviews, to make even the slightest deregulatory change to the numerical limits of the local radio ownership rule or the AM/FM subcaps, retaining the rule in exactly the same form since 1996,” said the filing in docket 08-3078 at that court. “The Commission failed to offer any compelling justification for these substantial burdens on broadcasters’ speech."

Relaxing newspaper-broadcast cross-ownership rules stemmed from a rulemaking process bereft of “informed and rational” action, said a draft filing from Free Press, Media Alliance, Prometheus Radio Project and United Church of Christ. Prometheus successfully challenged the 2003 media ownership order. The 2008 order “was marred by gross procedural irregularities,” the four groups said. “Instead of voting on a proposed rule in the Federal Register, the Chairman unilaterally released it in a New York Times op-ed and a press release. A draft of the Commission’s order was circulated before final comments on the proposed rule were even filed.” The groups asked the 3rd Circuit to throw out the 2008 order.