More judges on the 3rd U.S. Circuit Court of Appeals should hear challenges to the FCC’s ownership rules remanded in its Prometheus Radio Project v. FCC decision, said a group of broadcasters and newspaper owners in a petition for an en banc rehearing filed with the court late Monday. In a 2-1 decision in July, a three-judge panel sent back to the FCC several rules that would have relaxed restrictions on the cross-ownership of local broadcast and daily newspaper assets in the same market (CD July 8 p3). The group includes Fox, Tribune, CBS, NAB, Newspaper Association of America, Belo, Morris Communications and Clear Channel. It said the panel’s decision goes against the court’s Administrative Procedure Act precedents and also undermines the 1996 Telecom Act by stymieing Congress’ intent to have the FCC regularly update its ownership rules. Critics of media consolidation said the petition will probably fail.
Notable CROSS rulings
The focal point of new media ownership rules is wholly back on the FCC, since all pending litigation challenging the agency’s last review of the limits has ended. Industry executives and lawyers, FCC officials and nonprofit representatives who oppose further consolidation agreed in interviews last week that the ball’s in the commission’s court. The regulator had been waiting for a ruling, which came in July from a Philadelphia appeals court, on how to proceed on diversity issues (CD July 8 p3). Another court Wednesday (CD Aug 11 p13) denied a licensing challenge on the 2008 order.
An industry challenge to FCC media ownership rules won’t be heard by the U.S. Court of Appeals for the D.C. Circuit. Its Wednesday decision granted a request to dismiss Media General v. FCC. Such an appeal “generally” requires a licensing decision, the D.C. Circuit said. “The Commission did not grant or deny a license application in the challenged order, nor did it modify any license.” The 2008 rules were on cross-ownership of a newspaper and radio or TV station in the same market. Spokesmen for the regulator and for Media General had no comment. The company was backed by others after filing the lawsuit, Policy Counsel Corie Wright of Free Press told us. The group sided with the commission in the case. Media General appealed the FCC’s grant of five permanent cross-ownership waivers in the 2008 order, she noted. “This lawsuit was an attempt to get the D.C. Circuit to hear the media ownership case, which the industry thought would be more favorable to their interests."
Online DVD streaming service Zediva wants a slower discovery and trial schedule than the movie studios who sued it for violating their copyright, documents filed Monday with a federal court in California show. The court is set to hear arguments Monday on the studio’s motion for an injunction on Zediva’s service, which allows a user to rent DVDs and then remotely stream them from Zediva’s facilities. The studios want discovery to end five months after a court order on the injunction motion; Zediva wants that deadline set 12 months from the court’s injunction ruling. The parties also expect to file cross motions for summary judgment following the ruling on the preliminary injunction, the court documents said.
Work by career FCC staffers on proposed media ownership rules is progressing, after an appeals court remand of previous regulations, industry and agency officials said. They said the last batch of studies the agency paid outsiders to do is heading toward completion, and a rulemaking notice will be issued later. The commission contracted to pay $725,000 for eight studies, according to contracting documents Warren Communications News, publisher of Communications Daily, got from the agency by a Freedom of Information Act request. The research is on local online content, “civic knowledge” and “engagement,” TV viewing, ownership and other areas. The FCC has released five studies dealing with the Web, TV and radio (CD June 16 p9).
A proposal by major players in European broadband networks failed to completely win over alternative telecom providers, commercial broadcasters and digital rights activists at a European Commission CEO roundtable in Brussels Wednesday, representatives of those companies said. The 11 recommendations on how to spur investment in broadband, which include a call for differentiated services, were requested by Digital Agenda Commissioner Neelie Kroes and drafted by corporate chiefs drawn from content providers, equipment makers, investors and telecom operators, the EC said. Kroes said after the meeting that while the work produced no consensus, it “certainly helped to build mutual understanding."
Radio stations are making efficient use of spectrum, FCC Chairman Julius Genachowski said Tuesday as the agency approved a rulemaking on low-power and translator stations in the FM band. The number of listeners of terrestrial broadcast radio has been rising, and the spectrum is used “efficiently,” he said. The rulemaking notice eying a tiered system for the commission to leave space for future low-power FM (LPFM) stations when processing thousands of pending translator applications is “managing spectrum wisely,” Genachowski said. There are about 6,500 pending requests for translators from a 2003 filing window, Commissioner Robert McDowell said at the agency’s monthly meeting. He and other agency officials spoke of the longstanding tension between LPFM and translator stations for new channels.
Pending program carriage rules seem unlikely to be rewritten by career FCC staffers at the behest of Chairman Julius Genachowski after a court ruling in a media ownership case tossing out a regulation because adequate public notice wasn’t given about the potential for that rule, agency officials said Tuesday. The 3rd U.S. Circuit Court of Appeals’ 2-1 decision last week in Prometheus Radio Project v. FCC does have import for program carriage, the NCTA has said. Cable operators have contended previously that adequate notice wasn’t provided in a 2007 rulemaking.
A cross-ownership rule remand shows why the FCC shouldn’t require cable operators to keep distributing independently owned networks, the NCTA said Friday. A day earlier the 3rd U.S. Circuit Court of Appeals threw out rules on common ownership of a daily newspaper and radio or TV station in the same market. The 3rd Circuit said the commission wasn’t specific in a rulemaking notice about the coming rule before approving the media ownership order (CD July 8 p3). The 2-1 ruling in Prometheus Radio Project v. FCC “would apply with equal or greater force in the instant docket were the Commission to adopt a final ’standstill’ rule without seeking further comment,” NCTA Senior Vice President Rick Chessen wrote FCC General Counsel Austin Schlick. The filing in docket 07-42 (http://xrl.us/bkzgue) is about the carriage period that would start when the Media Bureau determines complainants made a prima facie case. “The facts here are more egregious than the facts before the Prometheus court. In Prometheus, there was at least some indication -- albeit brief and open-ended -- that the Commission intended to consider revising the cross-ownership rule at issue. By contrast, the program carriage NPRM in this docket contained no whisper of a potential standstill rule -- no mention of the word or even any general reference to the concept.” A retransmission consent NPRM asking about standstills for subscription-video carriage of TV stations “again highlight[s] that the FCC is perfectly capable of seeking comment on the issue where that is its intent,” Chessen wrote. “Interested parties were prejudiced by the inadequacy of the program carriage NPRM.” He concluded by saying that “inadequate notice is not a harmless procedural error; it is an integral part of proper decision-making and is ignored at an agency’s peril. It not only deprives the public of its right to attempt to persuade the Commission but also deprives the Commission of the evidence it needs to make informed decisions and avoid negative unintended consequences. It has also, in part, fueled calls for FCC process reforms in Congress.” Commissioner Robert McDowell may vote against or concur on program carriage because of potential concerns about adequate notice on the standstill provision in the draft Media Bureau order. All other FCC members have voted for it (CD July 8 p7), an agency official said Friday. A bureau spokeswoman declined to comment. As of Friday afternoon, McDowell hadn’t yet voted on the order and accompanying further rulemaking notice, nor proposed changes to the draft, another agency official said.
Rep. Cliff Stearns, R-Fla., is moving ahead with legislation to update the Regulatory Flexibility Act (RFA) and require independent agencies, such as the FCC, to review past regulations, the House Commerce Oversight Subcommittee chairman said after a hearing Thursday. The FCC is one agency that’s not doing enough to reduce regulation, Stearns and other subcommittee Republicans said. FCC Commissioner Robert McDowell, testifying alongside commissioners from the FTC and other independent agencies, agreed that the FCC should be more deregulatory.