Notable CROSS rulings

The delay of a media ownership deregulation vote following FCC Commissioner Mignon Clyburn’s concerns about lack of action on diversity may lead to a slightly rejiggered order early next year addressing some minority issues, officials inside and outside the agency predicted. Clyburn apparently played a key role in getting Chairman Julius Genachowski to hold off on a decision until at least Jan. 4. That’s when replies are due on a public notice the Media Bureau issued Tuesday night for feedback on minority and female ownership of radio and TV stations (http://xrl.us/bn4tzh). Some industry officials who reviewed the notice and accompanying blog post (http://xrl.us/bn4tzm) by bureau Chief Bill Lake, titled “Going the Extra Mile for Transparency,” said they came off as defensive. They said that’s unusual especially for official staff decisions like a public notice.

The draft FCC media ownership order won’t make easier common ownership of a top TV station and major daily newspaper in the same market, Media Bureau Chief Bill Lake said. Reports otherwise “are wrong,” he said by email Monday. “In fact, the order would strengthen the current rule by creating an express presumption against a waiver of the cross-ownership ban to allow such a combination.” The draft would allow waivers for stations not rated top-four and dailies in the same top-20 market (CD Nov 15 p1). The order would “preserve” the “TV duopoly rule, which forbids ownership of more than one of the top four TV stations in any market,” Lake noted. Public interest groups have criticized the forthcoming rules as allowing more consolidation.

The FCC should accept comments for 30 days on minority media ownership, Minority Media and Telecommunications Council President David Honig said Thursday night. He suggested a 20-day “lightning round of comments,” with 10 more days for replies. MMTC has backed allowing cross ownership of daily newspapers and TV stations within a market, as an FCC draft order would allow waivers for, and unlike other public-interest groups (CD Nov 30 p22) that continue lobbying the agency on the draft rules. The commission should “improve the record on the relationship between structural rules and minority ownership, on the definition of an eligible entity, on the many specific pending proposals aimed at advancing minority ownership, and on the research needed to ensure that decisions made in this area are well supported and wise,” Honig said in an email. Other nonprofits that oppose media consolidation and have said the commission is rushing to approve deregulation (CD Nov 29 p5) contend not examining the impact of the rules on “racial and gender diversity of station owners” would violate the 3rd U.S. Circuit Court of Appeals’ requirements for new rules. It’s “arbitrary and capricious” if the final order “failed to provide for meaningful public notice when applicants sought waivers and failed to prevent stations from circumventing the local television limit by means of shared services agreements,” representatives of about 10 groups told Commissioner Ajit Pai, according to a filing Thursday in docket 09-182 from Common Cause, Communications Workers of America, Free Press, National Organization for Women and others (http://xrl.us/bn38zh).

Nine Democratic senators urged FCC Chairman Julius Genachowski not to proceed with any rule changes that would relax the commission’s media cross-ownership rules, in a letter made public last week. The letter followed news that the commission is planning a vote to allow waivers of a ban on cross-ownership among daily newspapers and TV stations in top-20 markets (CD Nov 23 p5). The senators said the commission should avoid such a decision, which they said has the potential to harm minority communities who would suffer from further media consolidation. TV and radio ownership by women and minorities “remains at abysmally low levels,” the senators said, noting the recent broadcast ownership figures released Nov. 14 by the Media Bureau (CD Nov 21 p15). The letter was signed by Democratic Sens. Patrick Leahy, Vt., Tom Harkin, Iowa, Barbara Boxer, Calif., Patty Murray, Wash., Ron Wyden, Ore., Jon Tester, Mont., Al Franken, Minn., Jeff Merkley, Ore., and Independent Bernie Sanders, Vt. The FCC had no comment.

News Corp. wants the FCC to “eliminate the cross-ownership rule as a relic from a bygone era,” it said. “At the very least, the Commission should discard the rule in the nation’s largest media markets,” executives said in meetings with aides to FCC Chairman Julius Genachowski and to commissioners Robert McDowell and Ajit Pai. A draft order would allow waivers of cross-ownership rules in the top-20 markets, so one company could own a daily and a non-top four rated station (CD Nov 29 p5). Such a rule “would prove to be no more than phantom relief,” News Corp. said in a filing posted Thursday to docket 09-182 (http://xrl.us/bn33tc). It said top-four stations “are far more likely to produce local news, which makes them the most likely and plausible investors in newspapers, given that medium’s enormous economic pressures.” The Minority Media and Telecommunications Council, backing cross-ownership rule deregulation as long as it doesn’t hurt broadcast diversity, doesn’t want “further relaxation” of TV duopoly of radio/TV cross-ownership rules, MMTC officials said during meetings with McDowell and Pai. That’s “because of the harmful impact we believe these combinations have on minority ownership,” the group said in a filing in the docket (http://xrl.us/bn33t3). The draft would allow radio/TV cross-ownership (CD Nov 15 p1).

Widespread, successful ad-brokerage agreements among separately owned TV stations in the same market are leading some executives to question why the FCC wants to make attributable to the broadcaster controlling the joint sales agreements such JSAs. There are more than 100 stations in such deals, where one often lower-rated and smaller revenue outlet lets a bigger rival sell ads and they share office space and other clerical functions, our survey of brokers, lawyers and executives found. They said JSAs have become more prevalent in recent years, particularly among stations in small and mid-size markets.

"Caribou migration, foot, jeep, tractor, winter trails [and] roads across tundra that are inaccessible by most vehicles” were erroneously included in data that the FCC Wireline Bureau relied on in calculating some benchmarks for the new high-cost loop support rules. In an order Wednesday, the bureau found “good cause” to grant a request of Arctic Slope Telephone Cooperative (ASTAC) for an expedited waiver to correct the road miles, road crossings, and the number of exchanges in the study area that were used in the regression analysis establishing benchmarks for the co-op (http://xrl.us/bn3w63). The bureau has modified the relevant variables, and calculated revised capital expenditure and operating expense benchmarks for ASTAC.

Five groups will discuss their opposition to media ownership deregulation in a 1 p.m. Wednesday conference call, asking the FCC to “stop its rush to lift longstanding” limits, one of those organizations said in a news release. Free Press said officials of the group and the Asian American Justice Center, Leadership Conference on Civil and Human Rights, National Hispanic Media Coalition (NHMC) and Newspaper Guild-Communications Workers of America (CWA) will speak. Groups such as those have been asking the commission to seek public comment on broadcast ownership figures released Nov. 14 by the Media Bureau (http://xrl.us/bnzz9y), which show minorities and women own a low share compared to their portion of the U.S. population of radio and TV stations (CD Nov 21 p15). They want such comment solicited before a vote on media ownership rules, subject of a draft order that would allow waivers of a ban on cross-ownership among daily newspapers and TV stations in top-20 markets (CD Nov 23 p5). The bureau data show minorities own 19 TV stations in the 20 largest markets, and none are among the top-four rated that the draft rules would prevent from being cross-owned, nine nonprofits opposed to such waivers reported telling FCC General Counsel Sean Lev and officials from the bureau and office of Chairman Julius Genachowski. “Those stations would be vulnerable to acquisition by newspaper companies not controlled by minorities, just as in the past” when deregulation “resulted inexorably in sales of minority owned stations,” said groups including Free Press, NHMC, Prometheus Radio Project, Media Alliance and United Church of Christ in a filing posted Tuesday to docket 09-182 (http://xrl.us/bn3r64). The National Association of Black Owned Broadcasters said the 3rd U.S. Circuit Court of Appeals remand last year of the last media ownership order requires the agency to adopt a definition of eligible entities with “a reasonable possibility of improving ownership opportunities for minorities and women before the Commission may relax any of the existing ownership rules.” NABOB Executive Director Jim Winston reported meetings with Commissioner Jessica Rosenworcel and an aide to Commissioner Mignon Clyburn (http://xrl.us/bn3r7k). The eligible entity definition in the current draft order targets small businesses (CD Nov 15 p1). Several professors at Howard University are “stunned” the commission will vote on ownership deregulation before there is “adequate review and comment” on the bureau data, they wrote the FCC members. “There was a stated expectation by the Court that future deliberations should involve the use of credible ownership data,” said the letter (http://xrl.us/bn3r7v). Signers included Prof. Carolyn Byerly, who has written the agency before on the Form 323 biennial ownership documents on which the bureau’s data was based.

A 2013 treaty conference on copyright exceptions for the visually impaired moved a step closer at the meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR) that ended Friday. Details continued to be debated. But the committee approved a “draft text of an international instrument/treaty on limitations and exceptions for visually impaired persons/persons with print disabilities” and recommended that an extraordinary General Assembly Dec. 17-18 decide “whether to convene a diplomatic conference in 2013 to adopt a legal instrument/treaty."

The transfer of licenses to an earlier corporate incarnation of Tribune and waivers of cross-ownership rules so the company could hold onto radio and TV stations in markets where it owned daily newspapers would remain in place under a draft order, FCC officials said. They said a Media Bureau order that circulated Nov. 14 (http://xrl.us/bmxdnu) denied the substance of petitions for reconsideration of a 2007 commission decision that paved the way for Sam Zell to take the company private. The part of the 3-2 order (CD Dec 3/07 p6) the current item reverses would give a church group opposed to cross-ownership waivers standing to challenge applications to transfer control to Zell, agency officials told us last week.