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NAB: No Place Like Home For Joint Sales Appeal

If the National Association of Broadcasters was a sports franchise, they would be one that does better at home than on the road. And with that home-field advantage in mind, it has told the U.S. Court of Appeals for the D.C. Circuit that it doesn’t wish to see the four challenges to the FCC’s decision— which would make most TV joint sales agreements attributable as ownership interest— moved to the Third Circuit.

Broadcasters have good reason for keeping their FCC challenges close to home, historically speaking. The D.C. Circuit has a reputation as a conservative court, friendly to industry views about the limits of regulation. On three occasions, it has struck down net neutrality rules, citing them as overreaches of authority, and essentially deep-sixed the FCC’s national limits on cable system ownership.

The Third Circuit, by contrast, is seen as more liberal, and was the court that stayed (read: blocked) the FCC’s initial deregulatory moves in the early 2000’s and remanded the FCC’s revise of decades-old media ownership rules back to the commission, where issues related to deregulation and diversity have yet to be resolved.

Prometheus Radio Project, which initially challenged the rule changes back in 2003, is one of the four challengers to the rules this time around as well (joined by Free Press, NABET, CWA and others) and filed in the Third Circuit. The D.C. circuit got the combined case via lottery, but Prometheus has petitioned to move the case to the Third, citing the precedent of the original challenge and decision out of that court.

But the NAB has told the D.C. Circuit that the new challenges should not be transferred because the FCC’s latest media ownership item, voted under new chairman Tom Wheeler, was part of a “separate and new review,” and that the Third Circuit has at best some general expertise on the issue, but not any special expertise that warrants the transfer.

The D.C. court has principal jurisdiction over FCC decisions, and the NAB says the Third Circuit’s jurisdiction over two “narrow” issues from its 2006 review does not justify the move, arguing that it would “set a perilous precedent, effectively converting a narrow remand order into a hook that vests a single circuit with a virtual monopoly over review of any future agency proceeding.”

The NAB also points out that a transfer would be inconvenient since all the parties and all the lawyers, even those of Prometheus, are based in D.C., as are the governmental respondents. The Third Circuit is located in Philadelphia.

Prometheus argues that the inconvenience will be to educate the current court. The NAB counters that there is no need to wade into the 2006 record, but instead only to consider the latest record, which began with thenchairman Julius Genachowski’s attempt to produce an item based on the congressionally mandated quadrennial media ownership review. And to the degree the D.C. Circuit does have to look farther back, NAB suggests that is not particularly heavy lifting, and simply the court and lawyers doing their jobs.

“As for the purported difficulty of applying the Third Circuit’s prior Prometheus decisions, this amounts to nothing more than analyzing and applying prior decisions to this case, to the extent they may be relevant. These are not ‘burdens’—and certainly not an imposition on counsel to brief and explain, whose job it is to do so,” the NAB said in its filing.


The FCC has made it official. It is fining Houston cable operator TV Max a whopping $2.25 million for violating retransmission consent rules; the FCC has indicated this is its largest-ever fine for such a violation.

The commission proposed the fine over a year ago, but had to give TV Max a chance to defend itself. The company tried, but the FCC rejected its defense.

TV Max had argued that the violation fell under the so-called MATV (master antenna television facility) “exception” that allows, in some “limited” circumstances, for cable operators to not have to pay retrans consent if they are receiving signals with a master antenna facility, and delivering them to building residents.

The FCC concluded that because TV Max received the signals at an off-site head-end, they were not entitled to the exemption. The decision is a victory for Fox, Univision, Post-Newsweek and ABC, which had complained about the improper carriage.