Broadcasters Again Attack Cross-Ownership, Multiple Ownership Rules

Broadcasters and newspaper publishers again attacked FCC media ownership limits in reply briefs this week at the 3rd U.S. Circuit Court of Appeals in Philadelphia. The agency’s brief to the court (CD July 22 p6) was “remarkably non-responsive” to the questions raised by media companies, Fox said. “The FCC essentially concedes that it ignored relevant evidence concerning the sole rationale for the newspaper ownership rule -- viewpoint diversity,” Fox said. Similarly, the regulator failed to respond to showings against the multiple station ownership limits, Sinclair said. “The FCC did not refute or even address many of Sinclair’s arguments” and should be inferred that it concedes the points made by that broadcaster, the company said.

The Citizen Petitioners defended the agency’s decision to keep the station ownership limits. “As the Commission’s brief shows, it has, for the most part, properly exercised its discretion in deciding to retain the local TV and radio ownership rules,” said Prometheus Radio Project, the United Church of Christ and Free Press. If anything, those rules should have been tightened after the DTV transition because the switch to digital gave stations the ability to offer multiple programming services, they said. The groups also attacked the cross-ownership ban from a different flank, saying the agency didn’t respond to claims that it fails to properly notify the public when a company seeks a cross-ownership waiver.

Lifting the station ownership limits now would result in a flood of deals, the Citizen Petitioners said. “Many local TV stations are already in local marketing agreements in which one station typically provides some local programming to another station and sells the advertising time.” Those deals often include options to buy the station, which would probably be exercised in the absence of limits, the groups said. They asked the court to remand the rules for the FCC to consider tightening them.

The agency failed to address CBS’s arguments against the radio-TV cross-ownership limits and why its rules should be subject to a higher standard of scrutiny by the court, that broadcast network said. “The FCC’s failure to grapple with these important issues, much less rebut them, compels the conclusion that the order on review … is arbitrary and capricious” and violates the First Amendment, as well as other procedural laws, CBS said. The FCC’s brief conceded some of the issues raised in the case were “licensing decisions,” Cox and Media General separately said. Such decisions are the exclusive jurisdiction of the U.S. Appeals Court for the D.C. Circuit, Cox said. The company wants its appeal deconsolidated from the other petitioners’ claims.

The possibility that the FCC may further relax its ownership rules in 2010 is of no legal consequence, Clear Channel said. The commission hinted in its earlier brief that it might do that, the radio broadcaster said. “There will always be another media ownership review in the offing, but that future does not relieve the agency of its obligation to undertake meaningful review in each current proceeding.”