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Broadcasters Are Split on Ownership Appeal

Broadcasters are divided over how the Supreme Court should view a Third Circuit decision upholding most of the Federal Communications Commission’s local ownership caps. While broadcasters all want the Supreme Court to hear the appeal of that decision—having filed petitions to that effect last week— they are divided over how deep a dive the court should take into them.

Fox, joined by Tribune, Sinclair, Bonneville, The Scranton Times, Clear Channel, Morris Communications and the Newspaper Association of America not only want the High Court to reverse the lower court, but they argue that the spectrum scarcity rationale underpinning media ownership regs in general should be thrown out.

“The time has come for the Court to intercede and restore the full protections of the First Amendment to broadcasters. [T]the scarcity doctrine expired long ago,” said the petitioners, citing a revolution in media delivery since the early 1970s, when the Fairness Doctrinerelated Red Lion decision was issued.

CBS did not join the petitions; a CBS representative would not comment, but a source at the company said it was likely to file later in the process. ABC did not file, and has not in the past. ABC has no duopolies, is not near the national station cap and essentially has no dog in the fight. NBC did not file either, but in its Supreme Court filing on indecency, it took aim at other outdated regs, so it is on the books as wanting the court to review the FCC’s regulatory underpinnings.

The National Association of Broadcasters filed separately, but confi ned its brief to asking the court to settle the narrower questions of which federal appeals court and media ownership call was correct: the Third Circuit, which upheld the FCC’s local ownership caps, or the D.C. Circuit, which previously held that the duopoly rule was arbitrary and capricious.

As in the case with its filing on indecency, the NAB has historically been reluctant to ask the FCC to get entirely out of the media regulation business. The logical extension of that argument has appeared to be making them either pay for their spectrum, or else lose must-carry retrans rights.

Corie Wright, policy counsel for Free Press, which has strongly opposed loosening broadcast ownership regs, says the NAB has manufactured the circuit split, and that Red Lion is hardly toothless. “There isn’t really a split,” she says. “The D.C. Circuit didn’t say the FCC should relax its rules. It said the FCC hadn’t adequately justified its decision not to relax the rules. The Third Circuit [later] said, based on the evidence before it, that the FCC had justifi ed it.”

As for the constitutional arguments raised by Fox and others, Wright notes the Supreme Court declined to review the case the last time broadcasters challenged a Third Circuit media ownership ruling in the mid-2000s, and that nothing has changed materially since then.

Wright pointed out that the FCC itself at the time believed the Internet was not contributing significantly to local news competition, and that online news was still dominated by TV stations and newspapers, an argument the current FCC has also made. It’s also one broadcasters suggest indicates the agency should not be so quick to turn over broadcaster spectrum to wireless.

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