Skip to main content

Third Circuit Lifts Stay On Media Ownership Rules

The Third Circuit Court of Appeals has vacated its stay of
the media ownership rules and set a briefing schedule beginning May 17. 

Back in December, the court gave the FCC and backers of its
position three weeks to explain why it should not lift the years-long stay on
the commission's media ownership rule rewrite and start hearing the legal

The court has now decided to proceed with the case despite
FCC requests that it allow the commission to review the rules first.

The court's lifting of the stay would appear to temporarily reinstate the commission's decision under then Chairman Kevin Martin to loosen the newspaper-broadcast crossownership rules. Which means that at least until the court or the FCC makes a decision, broadcasters could combine TVs and newspapers in the top 20 maarkets and smaller ones under specific conditions, though it is hardly the regulatory certainty broadcasters are seeking. 

"Upon consideration of the parties' status reports and
the responses to the orders filed June 12, 2009, November 4, 2009 and December
17, 2009, the stay entered by this Court in Nos. 03-3388 et al., and continued
in Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004) is hereby
lifted. The following briefing schedule shall apply to these consolidated
proceedings," wrote Chief Judge Anthony Sirica, setting the following
briefing schedule:

  • "Briefs and Appendices of
    Petitioners/Appellants shall be filed and served on or before May 17, 2010.
  • Briefs of Respondents/Appellees shall be filed
    and served within thirty (30) days of service of briefs of
  • Reply briefs, if any, shall be filed and served
    with fourteen (14) days of service of responsive briefs
  • Pursuant to Fed. R. App. P. 28(i), the parties
    may join in or adopt by reference portions of another's brief to avoid
    repetitive briefing. Parties may also file consolidated briefs."

The judges said in December that they wanted more input on
why the court should not lift the stay on the revised newspaper-broadcast
cross-ownership rule and set a schedule for briefs on court challenges to that
rule--both those currently before the court and those held in abeyance.

The FCC, back in October and again in November, asked to
keep the court's current stay of the rule change in place or, failing that,
remand the decision back to the commission. It also asked the court to hold off
on hearing the legal challenges until the commission had finished the 2010
quadrennial review of the media ownership rules. For its part, the FCC said it
was not going to rule on a petition to reconsider the cross-ownership decision
until it had finished the review, which it has already begun. 

In a status report filed with the court in October, the
commission reaffirmed that its 2008 decision to loosen the ban no longer
necessarily reflected the views of a majority of the commission (unlike in
2008, the current majority is Democratic). In May, when Democrats gained the
majority, the commission had made that point to the court in asking that the
stay be kept in place. The court complied but has since sought the status
report on the FCC's progress on the issue.

A group of broadcasters, including CBS, Belo, Media General
and Gannet, opposed the remand and said the stay on the revised rules should be

In the 2008 decision, the FCC modified the outright ban on
newspaper/broadcast cross-ownerships in the top 20 markets and outlined a new
waiver process for smaller markets.

The FCC's media ownership rules have been under some form of
court challenge, stay, or review since then-FCC Chairman Michael Powell tried
to loosen them in 2003. FCC Chairman Kevin Martin argued the 2008 rules were a
modest change and a compromise, but they were almost immediately taken to court
by those who argued they went too far or not far enough.

In recent ownership workshops, broadcasters have argued that
in an increasingly multiplatform world, where broadcast-online-print synergies
may be one way of remaking their business models, the restrictions on
cross-ownership are even less defensible.

Former FCC Michael Powell, now a senior advisor with Providence Equity Partners, says the Third Circuit should have some new facts to consider as it looks at the rules. "This is a new day," he told B&C in an interview. "That court was originally dismissive about the Internet [in terms of a competing voice in the market], which I think to me was their big error and I continue to think was right. To say that this is not a substitute or people don't get their news from it gets harder as the years go by."

"I am pleased that the U.S. Court of Appeals for the Third Circuit has decided to move forward promptly with its review of the Commission's 2007 media ownership decision and to lift the stay that until today has frozen in place burdensome ownership rules that are many years out of date." said FCC Commissioner Robert McDowell of the decision . "As I said in the letter I filed at the Third Circuit last spring, when the court was contemplating a change in the Commission's position concerning the timing of court review, I favor swift action on the pending appellate challenges. The lifting of the stay on the Commission's very modest relaxation of the newspaper/broadcast cross-ownership rule is particularly appropriate given the economic upheaval affecting the ongoing viability of many daily newspapers and broadcast stations. I also believe that the Commission can only benefit from instruction of a Third Circuit ruling on the 2007 ownership rules as we begin the next round of the statutorily required quadrennial review of the regulations. "