The;FCC;must;review;its;media;owner-ship;rules;every;four;years;and;modify;or
repeal;them;if;they;are;not;in;the;public
interest,;which;is;determined;by;compe-tition,;diversity;and;localism.
“
To;say;[the;proceedings];are;conten-tious;would;be;a;huge;understatement,”
says;Corie;Wright,;policy;counsel;with;the
public;interest;group;Free;Press.;“All;have
ended;up;in;litigation;to;varying;effect.”
Prometheus Radio Project v. FCC,;or
Prometheus II,;concerns;rule;changes;in
the;commission’s;2008;Media;O wnership
Order;stemming;from;its;2006;review.;(In
Prometheus I, the;3rd;Circuit;remanded
to;the;FCC;rule;changes;the;commission
attempted;to;adopt;after;the;2002;review.)
The;3rd;Circuit’s;July;7;opinion;in
Prometheus II rejected;the;rule;change,
finding;that;the;FCC;failed;to;meet;the
notice;and;comment;requirements;of
the;Administrative;Procedure;Act.;The
record;reflects;several;instances;of;“irreg-ular”;procedure,;as;the;court;put;it.
In July 2006, the commission
published;a;Final;Notice;of;Proposed
Rulemaking;(FNPR);seeking;comments
on how to address the 3rd Circuit’s
remand;in Prometheus I.;The;FCC;relied
on;two;sentences;asking;about;owner-
ship;limits;in;local;markets;as;adequate
notice;of;the;NBCO;rule.;Commenters
complained;that;the;lack;of;proposals
and;suggestions;in;the;FNPR;would;limit
their;submissions.
“I;don’t;know;that;this;decision;is
going;to;change;much;[in;the;forth-coming;proposed;FCC;ownership;rules]
because;a;number;of;the;current;com-missioners;have;said;they;didn’t;support
[the previous changes],” says Dan
Kirkpatrick,;an;attorney;at;Fletcher,
Heald;&;Hildreth.;“But;I;think;the;deci-sion;will;at;least;lead;to;them;putting
out;a;more;specific;notice;of;proposed
rulemaking;to;satisfy;procedural;require-ments;the;court;set;up.”
NBCO Misgivings
The 3rd CirCui T’s opinion didn’T address The meri Ts of The fCC’s
2008 newspaper/broadcast ownership rule, but it did uphold the constitutional-
ity of media ownership limits. it rejected industry arguments that consolidation
limits in the fCC’s media ownership rules violate the first amendment by
manipulating content. “These rules apply regardless of the content of program-
ming,” the court said.
it also denied that the limits violate the fifth amendment by treating news-
papers differently from other media, pointing to supreme Court precedent
upholding the treatment.
on the other side, the public interest community perceived “major loopholes” in the rule, says Corie Wright, policy counsel for free press. for example,
Wright says the fCC didn’t provide adequate mechanisms for confirming or
enforcing the requirement that broadcasters air additional local programming,
which apply to broadcast-newspaper mergers in certain market areas.
“if the fCC tries to rinse and repeat and do the same thing that was done
before, it will get significant opposition from the public interest community,”
she says.
Diversity Measures
The;remands;will;be;folded;back;into;the
2010;review;and;reflected;in;proposed
rules;expected;by;the;end;of;the;year.
“I’m;expecting;we;won’t;see;major
changes,”;Augustino;says.;“If;anything,
we’re;more;likely;to;see;a;little;bit;of;a
push;on;localism;and;diversity.”
On;diversity,;the;3rd;Circuit;“reserved
some;particularly;harsh;words;for;the
FCC,”;Wright;says.;In;Prometheus I,;the
appeals;court;ordered;the;FCC;to;address
the;advancement;of;broadcast;ownership
by;women;and;minorities,;criticizing
the;commission’s;prior;attempts.;In;its
Prometheus II opinion,;the;court;again
expressed;dissatisfaction,;writing,;“The
Commission;has;in;large;part;punted;yet
again;on;this;important;issue.”
While the FCC’s 2008 Diversity
Order;proposed;rules;aimed;at;promoting
minority;and;female;ownership,;they;were
designed;to;provide;opportunities;for;“eli-
gible;entities”;as;determined;by;revenue.
The;3rd;Circuit;called;the;“eligible;enti-
ties”;definition;“arbitrary;and;capricious.”
The;court;also;noted;that;it;would
retain;jurisdiction;over;those;issues;in
future;proceedings,;which;likely;means
the;3rd;Circuit;will;host;future;litigation
over;the;2010;media;ownership;review.
“That;was;significant,”;Augustino
says.;“It;increases;the;chance;that;the;3rd
Circuit;is;going;to;review;all;the;media
rules;that;come;out;of;the;proceeding.”
