Genachowski FCC Stands by Media Ownership Rules Under Martin

The FCC stood by media ownership deregulation, excusing in five instances licensees from restrictions on owning a daily newspaper and radio or TV station in the same market and allowing such cross-ownership in large cities approved on a party-line vote in December 2007 during Chairman Kevin Martin’s tenure. That was spelled out in a filing Wednesday afternoon to the 3rd U.S. Circuit Court of Appeals in Philadelphia, which is considering industry challenges seeking further deregulation and media consolidation opponents’ requests for stricter rules. Commissioner Michael Copps, who along with then-Commissioner Jonathan Adelstein voted against the congressionally mandated quadrennial review report, slammed the filing, which Chairman Julius Genachowski said he supports because the FCC acted within its discretion.

"Consistent with its longstanding policy of simultaneously promoting and balancing the values of diversity, competition and localism, the Commission in 2008 modestly loosened the decades-old newspaper/broadcast cross-ownership ban while keeping the rest of its media ownership rules unchanged for the time being,” the brief in Prometheus Radio Project v. FCC said. “The Commission permissibly took account of three overarching considerations” including “the uncertain evidence in the record at the time regarding lasting trends in the media marketplace” and “that the newspaper/broadcast cross-ownership rule was the only one of the Commission’s media ownership rules that had not been substantially relaxed over time,” the agency said.

The decision was within the agency’s broad discretion to regulate media ownership, the filing said, http://xrl.us/bht26r. . “The parties challenging the 2008 Order cannot prevail on review by pointing to alternative rules the Commission might also permissibly have chosen or might choose at the end of its 2010 quadrennial review on an up-to-date record. Instead they must show that the rules adopted in the 2008 Order fall outside the Commission’s broad discretion given the record before the agency at that time. This they cannot do."

The 2010 review, which the commission is in the middle of (CD July 21 p7), requires looking at “any changed facts in the marketplace based on a record” the agency is putting together and promoting competition, localism, and diversity, Genachowski said. “Our 2010 quadrennial review will focus on these values, in the interest of an informed citizenry and vibrant media marketplace,” he said. “While the rules being challenged were adopted before I became Chairman, I support our General Counsel in arguing that the order was within the discretion of the Commission and the brief’s general defense of the Commission’s authority to make decisions based on the information before it at the time.”

Copps finds it hard to believe a Democratic-controlled FCC is “in court today basically accepting the validity of the pro-consolidation decision of a previous Commission,” he said in a written statement. “We have had 18 months to reconsider the awful vote that loosened our newspaper-broadcast cross ownership rules, but the best we can do, judging from today’s brief, is to kick the media ownership can farther down the road. Months ago we asked the court to be patient with us while the agency deliberates where it wants to go on media policy."

It’s disappointing the current FCC is defending Martin’s “highly deregulatory decision” on cross-ownership, said Senior Vice President Andrew Schwartzman of the Media Access Project, representing Prometheus. “This unfortunate aspect of the Commission’s brief will undermine the FCC’s ability to defend those portions of its 2007 decision which rightly opted to maintain other television and radio ownership rules in their existing form. The consequences of the FCC’s position in this brief could have seriously adverse effects on the diversity of ownership and programming in media."

The NAB thinks the FCC in 2007 didn’t go “far enough in recognizing the seismic changes that have occurred in the last 30 or 40 years,” a spokesman said. “It’s difficult to justify retaining a broadcast-newspaper cross-ownership ban and duopoly rules at the same time as the commission would look potentially favorably on the merger of Comcast and NBC” Universal, he added. “We think modest reform of some of these outdated rules are warranted to ensure that free and local broadcasting not only survives but thrives.”