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Judges Hard to Read In FCC Ownership Case Argument

Broadcasters may be looking for regulatory clarity on media ownership rules, but if one attorney and a second observer in the courtroom were any indication, it has yet to get any signals of judicial certainty.

The three-judge panel hearing oral argument in challenges to the FCC's media ownership rules in the Third Circuit Court of Appeals in Philadelphia Thursday seemed to have trouble with the FCC's decision from both ends of the spectrum.

That is according to Media Access Project attorney Andrew Schwartzman, who argued the case Thursday on behalf of those who say the move was too deregulatory. "They were clearly troubled by the arguments that we made about
what the commission did wrong. And they were clearly troubled by the arguments that the broadcasters made about what the commission did wrong. We were coming at it from kind of opposite directions. It seems open to the possibility the they will just kind of throw up their hands."

That could translate to giving deference to the FCC's 2007 call, which could soon be overtaken anyway if the new commission proposes changes following its congressionally mandated review of the rules, which is currently underway.

A gallery observer agreed with Schwartzman that the court had trouble with the FCC from both sides. "That is probably a fair comment." He said, adding that he expected the case would come down to deference to FCC as the expert agency. "The FCC argued that it had followed the Administrative Procedures Act and everything was within our discretion," said the observer.

The same three-judge panel that heard the 2004 challenge to the FCC's deregulatory rule changes under then FCC
Chairman Michael Powell was hearing the challenge Thursday by both broadcasters and public interest groups to the 2007, less deregulatory, attempt by the FCC to loosen the newspaper-broadcast crossownership rules. Those Judges were Judges Anthony Scirica, Thomas Ambro, and Julio Fuentes.

"It is pretty hard to figure out what is going to happen here," said Schwartzman, an observation also seconded by the observer. For one thing, as opposed to the 2004 argument, which Schwartzman also made to those same judges, the judges stuck to the allotted time on the arguments, about two and a half hours, compared to the all-day marathon of the first argument. "They did not delve into detail with respect to some of the things the broadcasters argued," he said, so it was hard to tell whether they had been persuaded by them. There were three different attorneys arguing the broadcasters' case.

The FCC had previously asked the court to remand the rules back to them given that there are three new commissioners--a majority--since the most recent 2007 rule rewrite. Judge Ambro wanted to know where the FCC stood on its quadrennial review of those rules, and asked whether the FCC would combine that with the remand. "So, it is really unclear whether they are going to do nothing, or do something, and if so, what.

Broadcasters, who argue the FCC did not go far enough in simply loosening the crossownership ban rather than lifting it, have problems with the way the FCC considered the evidence for the newspaper/broadcast crossonwership rules, the local TV ownership rule--which the FCC did not loosen--and made jurisdictional arguments about whether the court should consider Schwartzman's arguments concerning waivers of the rules granted by the FCC to Gannett and Media General in concert with the 2007 decision.

One issue in the case is what media ownership rules will be in place if the court did throw out the 2007 changes. Those 2007 changes came after the 2003 rules were approved by the FCC but stayed and then remanded by the Third Circuit. Schwartzman said Judge Fuentes asked broadcasters' lawyers what rules would be in place, saying broadcasters were surely not suggesting there should be no rules at all.

Judge Ambro may have summed up broadcaster frustrations when he pointed out that when he wrote the original opinion back in 2004, he certainly didn't expect it was going to take seven years to come back to him.

That opinion had remanded the rules back to the commission to better justify its deregulation, triggering a series of hearings and studies, field hearings, decisions, congressional gambits, and more legal challenges, leading to Thursday's latest chapter in the continuing saga.