The Federal Communications Commission Wednesday filed a brief with the Third Circuit Court of Appeals defending its authority under then-chairman Kevin Martin to loosen the newspaper-broadcast cross-ownership ban.
The court is currently hearing the challenge to that ruling from both sides of the issue. Broadcasters argue that the FCC did not go far enough and should have lifted the ban and addressed other rules like duopolies and local station ownership caps. Media consolidation foes argued that any more deregulation was too much.
In its defense, FCC general counsel Austin Schlick argued in the brief that it was reasonable to relax the rules in the top 20 markets because "combinations â€˜generally raise fewer diversity concerns' in the top 20 markets because those markets 'have more media outlets.' "
The FCC brief describes the change as modest. The commission brief also defended the Martin commission decision not to scrap the ban. "To protect against the realistic prospect that consolidation of media outlets in some instances could harm viewpoint diversity, the Commission adopted a presumption against newspaper/broadcast cross-ownership in markets below the top 20," it said.
But the FCC defended its power and asked the court to either drop, or deny the petitions or uphold the agency decision if it did not. It was not meant to be an endorsement of that policy per se, only of the legality of the pre-Genachowski FCC's decision to adopt it.
The commission has indicated it could change as part of its separate, congressionally mandated review of all its ownership rules.
In a statement on the FCC's filing, chairman Julius Genachowski provided no endorsement of the substance of the decision.
"Today our general counsel filed a brief in the U.S Court of Appeals for the Third Circuit defending the Commission's authority to make the changes to our media ownership rules that the Commission adopted in 2008," he said in a statement. "While the rules being challenged were adopted before I became Chairman, I support our general counsel in arguing that the order was within the discretion of the Commission and the brief's general defense of the Commission's authority to make decisions based on the information before it at the time."
Genachowksi pointed to the FCC's current rule review as well, adding: "[T]he agency is in the middle of the 2010 ownership review. The review requires us to look at any changed facts in the marketplace based on a record which the Commission is now assembling."
That explanation notwithstanding, consolidation foes, including FCC commissioner Michael Copps, took the agency to task for its defense.
"It is difficult for me to believe that our new FCC, with its new majority, is in court today basically accepting the validity of the pro-consolidation decision of a previous commission," said Copps. "We have had 18 months to reconsider the awful vote that loosened our newspaper-broadcast cross ownership rules, but the best we can do, judging from today's brief, is to kick the media ownership can farther down the road."
"Media Access Project is, to put it mildly, disappointed that the FCC majority is defending Kevin Martin's highly deregulatory decision with respect to the Newspaper Broadcast Cross-Ownership rule," said Media Access Project senior vice president Andrew Schwartzman. And while the FCC did defend its decision not to loosen radio/TV cross-ownership rules or local market limits, Schwartzman is concerned those could be at risk. "This unfortunate aspect of the Commission's brief will undermine the FCC's ability to defend those portions of its 2007 decision which rightly opted to maintain other television and radio ownership rules in their existing form. The consequences of the FCC's position in this brief could have seriously adverse effects on the diversity of ownership and programming in media."
Joining the chorus of boos was Free Press. "We are disappointed that chairman Genachowski directed the agency to defend a defective NBCO rule that has been widely criticized both for its substance and for the manner in which it was adopted," said Free Press Policy Counsel Corie Wright.