Supremes Won't Review Ownership Rules

The Supreme Court Monday decided not to review the Federal Communications Commission's media-ownership rules, which means that the commissioners must now rewrite some and better justify others.

For his part, Democratic FCC Commissioner Michael Copps, who was one of two commissioners to vote against the original rules, was ready to roll up his sleeves: "The ball is clearly back in the Commission’s court," he said Monday.
"The FCC has a fresh opportunity now to come up with a set of rules to encourage localism, competition, and diversity in our media.If we work together, conduct outreach to engage the American people, and gather a more complete record, I am confident of our ability to craft rules that will withstand judicial scrutiny and the scrutiny of the American people."
Broadcasters had asked the court to review an appeals court remand of the rules for those major justifications and changes.
Various parties -- including Media General Corp., the National Association of Broadcasters, Tribune Co., FCC cross-petitions, Sinclair Broadcast Group Inc. and Clear Channel Communications Inc. -- had sought the reviews, but apparently, all were denied.

Broadcasters argued that the remand is in conflict with earlier Supreme Court and other appeals court decisions on "the treatment of regulation that singles out a particular class of speakers," as well as an earlier D.C. circuit court decision on the status of ownership rules.

NBC Universal responded to the decision in a statement, saying that the defeat was a battle, not the war.
:"Today's Supreme Court decision will delay, but not derail, the inevitable conclusion that regulations dating from the era of black and white TV need to be updated for today's digital world. The FCC now needs to re-justify their 2003 recognition that these old rules desperately need revision or elimination.
"The third circuit decision did not oppose the FCC's conclusion that deregulation was the right FCC policy in light of today's unprecedented level of media competition; the decision simply questioned the specific ownership thresholds established by the FCC for any particular market.
"The need for media ownership rules that accurately reflect the media landscape of the 21st century is as critical today as when the FCC initially relaxed these rules in 2003."

The FCC in June 2003 passed deregulatory rules that stemmed from what it saw as that D.C. appeal's court's direction to prune rules that were not demonstrably in the public interest.

The new rules generally deregulated ownership by allowing more duopolies (ownership of two stations in a market), some triopolies, and allowing newspaper/broadcast crossownership. It also tightened a radio ownership loophole, which was not remanded.

Those rules were stayed pending an appeal, then remanded by the Philly appeals court for changes and better justification.

Also asking the court to review the decision were the National Association of Broadcasters and the Newspaper Association of America. The FCC's remanded rules would allow companies to own newspapers and stations in the same market. Those combos are currently precluded except for a number of grandfathered markets, and ones where companies, like Tribune, bought stations in newspaper markets with the expectation of the rule change.

The FCC and the administration decided not to challenge the appeals court ruling.

"We’re pleased, but not surprised. "said Andrew J. Schwartzman of the Media Access Project, who was lead counsel and helped secure the remand. 

The Court of Appeals in Philadelphia decisively rejected the FCC’s effort to repeal almost all limits on broadcast ownership," said Schwartzman. "Ultimately, even the Department of Justice and the FCC agreed that this case was unworthy of Supreme Court review."

But Schwartzman sounded a cautionary note as well: " Expect difficult fights ahead.  FCC Chairman Kevin Martin has signaled that he will try to divide the media ownership proceeding into several pieces to reduce its visibility.  If true, that won’t work, because the American people now know what's at stake.

Democrat Diane Watson (D-Calif.), a media consolidation critic, reacted to the decision by calling on the FCC to hold "at least one hearing in every single state, increase transparency on initiatives such as the diversity index, and develop a credible record on media cross-ownership that serves the public instead of corporate profit margins."

"This decision is a rare victory for the public over some of the most powerful corporations in America," said Commissioner Jonathan Adelstein, along with Copps the other no vote on the rules. "We need to be very careful because once we allow greater media concentration, we can't put the toothpaste back in the tube.  We can't let a handful of media giants dominate the discourse in any community."

Like Watson, Adelstein asked for more public input, a cause he and Copps have both championed.

"[W]e now need to involve the public and Congress more fully in our deliberations," Adelstein said.  "We need to hold public hearings across the country, and call for more studies from experts and academics."

The Supremes released six decisions Monday, but as expected, neither the Grokster copyright case nor the Brand X cable internet access case, both being closely watched by media attorneys, were among them.