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Half speed ahead

The appeals court decision last week to remand the 35% cap on station ownership to the FCC with instructions to either defend it or deep-six it was a potentially historic one, as was vacating the ban on cable/broadcast same-market crossownership.

Networks, other broadcasters and this page have been pushing for increased limits at least since the 1940s, when NBC wanted to buy TV stations in key markets to begin "chain" broadcasting, as it then was called. Having applauded each successive change, from three stations to five to seven to 12 to "the cap's the limit" last week, we are ready for the next step.

That stance has been increasingly at odds with some. As the networks became more powerful and their relations with affiliates more strained over economic issues, the idea of some governor on network power became increasingly attractive to smaller group owners.

We continue to oppose structural regulations as an intrusion on broadcasters' First Amendment rights, their ability to function with the same freedom from government oversight as newspaper and magazine publishers do. But we are also sensitive to the concerns of smaller broadcasters increasingly faced with the unhappy choice, as broker Larry Patrick puts it, of buying, selling or getting run over.

So our answer is to take that next step toward incremental deregulation.

The court has told the FCC in no uncertain terms that it must clearly justify its approach to keeping or modifying ownership rules. Fine, the FCC should explain to the court that its ultimate goal is to scrap any unnecessary rules but that the only way for it to gauge the impact on the market of unfettered ownership is to do it by degrees, to open the floodgates gradually rather than dynamite the dam. The FCC can try to find economists to justify a new cap percentage, but why bother? All caps are arbitrary. It should instead admit that fact and tell the court that a cap, let's say, upped to 45% is a responsible approach because it provides for a real-world test of a theoretical limit.

The court pointed out that Congress's directive in remaking the telcom act in 1996 was not some gentle prod, but more akin to Farragut's orders at Mobile Bay: "Damn the torpedoes! Full speed ahead." We would amend that to "deliberate" speed ahead.


Although he ended his network news career with ABC, Howard K. Smith, who died last week at 87, was one of "Murrow's boys." He was a Rhodes Scholar, a war correspondent who succeeded Edward R. Murrow as CBS's top man in Europe, a Washington correspondent and, at ABC, evening-news anchor in a career that mirrored the arc of TV news' maturation. A self-described perfectionist, Smith never wanted to settle for less than his best. As far as we can tell, he never did.