The FCC says the stay on its current partial lifting of the ban on newspaper-broadcast crossownership should remain in place and court challenges to that order held in abeyance because it is bound to be superseded by a new decision, from new commissioners, based on a changed media marketplace.
Broadcasters say the FCC is stalling and that the court needs to put the pedal to the metal.
The FCC's media ownership rules have been in limbo for more than a half-decade and the 2008 rules change under FCC Chairman Kevin Martin has never gone into effect, one of the reasons broadcasters had asked the court to get on with hearing the case and lift the stay in the interim so they could get some regulatory certainty.
But the FCC said either of those actions would be pointless since it would be coming up with some new rules--under a now-Democratic majority.
That news came in the FCC's filing to the Third Circuit Court of Appeals Thursday. That court, which currently is holding in abeyance its consideration of various appeals of that FCC 2008 order, had asked the FCC to explain why it should not proceed with argument in the challenges, and lift the stay on the 2008 rules while it was at it.
In their brief, also filed Thursday, broadcasters repeated their arguments that they continue to be harmed by rules the FCC itself found unnecessary back in 2003. "Five and a half years after this Court affirmed the Commission's repeal of the NBCO Ban (While the Third Circuit had problems with other parts of the FCC's deregulatory rule rewrite in 2003--under then Chairman Michael Powell--it concluded that the FCC had made a case for scrapping the crossownership ban), and nearly two years after the Commission determined that adopting somewhat liberalized waiver standards was in the public interest, the Court should allow that action to take affect." But even if the court did not lift the stay, it should proceed with a hearing on their court challenge, the broadcasters argued.
Continuing to hold the case in abeyance, they argue, "would provide the Commission with a roadmap for perpetually evading judicial review, simply by delaying action on petitions for reconsideration and then asserting that the next Quadrennial Review obviates the need for a court to consider the legality of its actions." It also prevents them from challenging the 1999 duopoly rule, which is also tied up with the ownership rule review.
The commission, echoing earlier arguments to the court, said that since it expected to come up with a new ownership rule order at the conclusion of its current quadrennial review of ownership rules, it would be a waste of the court's resources to lift the stay or proceed with the case. Continuing abeyance, they argued, "
"Any guidance that this Court could provide in a decision resolving this litigation would be of limited value, inasmuch as it would concern the validity of a soon-to-be-superseded order on an agency record that has been overtaken by events," the FCC said in a brief that lived up to its name--the argument portion took up less than two pages.
The commission also argued that to lift the stay would simply invite a applications for transactions under rules that will be superseded by the new order following the quadrennial review, which it said was on track to be completed "in relatively short order," though if that is relative to the previous years-long review, that could leave lots of wiggle room.
Broadcasters weighing in collectively as Media Parties include Fox. CBS, Belo, Gannett, Media General, and NAB.
Broadcasting & Cable Newsletter
The smarter way to stay on top of broadcasting and cable industry. Sign up below
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.