Thursday the Third Circuit Court of Appeals struck down a 2007 FCC decision that loosened rules restricting the co-ownership of newspapers and broadcast stations, known as the cross-ownership ban. At the end of that year the Kevin Martin-led FCC rushed through that last minute decision to erode the rule which generally prevented one company from owning both a newspaper and a television or radio station in the same broadcast market. The 2007 revision presumptively allowed a newspaper and either one television station or one radio station to be co-owned in the twenty largest markets in the country.
As it turns out, it was the FCC’s rush to judgement that the Court most objected to, finding,
In this context, we have little choice but to conclude that the FCC did not, through the FNPR [Further Notice of Proposed Rulemaking], fulfill its “obligation to make its views known to the public in a concrete and focused form so as to make criticism or formulation of alternatives possible.”
What the FCC relied upon as its public notice was an Op-Ed written by Chairman Martin, which the Court observed did constitute sufficient notice under statute. Further weakening things was the fact that the proposal to weaken the cross-ownership rule,
was not published in the Federal Register, the views expressed were those of one person and not the Commission, and the Commission voted days after substantive responses were filed, allowing little opportunity for meaningful consideration of the responses before the final rule was adopted.
The Court also took the FCC to task for not adequately addressing how media ownership rule changes affect people of color and women .
The case was brought by a coalition of public interest groups comprised of the Prometheus Radio Project, Media Alliance, the Office of Communication of the United Church of Christ and Free Press. Of the verdict Andrew Jay Schwartzman of the Media Access Project, who argued the case for Prometheus, said
We won on almost every point. This decision is a vindication of the public’s right to have a diverse media environment.
A larger group of media companies, including CBS Broadcasting, Gannet and Clear Channel, also brought suit arguing that the 2007 decision didn’t go far enough in eroding the cross-ownership ban and the FCC’s local media ownership rules. The Court sided against these parties, upholding the FCC’s existing local ownership limits on radio and TV stations.
The National Association of Broadcasters VP of Communications Dennis Wharton released a statement saying,
NAB believes that modest reform of rules to allow free and local broadcasters to compete successfully in a universe of national pay TV and radio platforms is warranted.”
Wharton, obviously, didn’t really address the ruling at all, probably because the prospects of further weakening media ownership rules is looking bleaker following the Third Circuit’s takedown of the last two go-rounds in 2003 and 2007.
Nevertheless, we’re all in for another go as the FCC digs in for another stab at reviewing ownership rules as part of the Congressionally-mandated biennial review process. This much is clear, it’s unlikely we’ll see another Kevin Martin-style freight train proceeding to try and force a broadcast-lobby-friendly rule change before anyone knows what hit them.
