Martin Sets 'Indispensable' Standard for FCC Rulemakers

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Another policy dispute — this time over media-ownership rules — has divided the three-vote Republican majority at the Federal Communications Commission.

Over the next few months, the agency is required to modify or repeal broadcast-ownership rules considered not "necessary" to protect the public because competitive markets have overtaken regulation in the protection of consumers from anti-competitive practices.

Within the FCC, the quarrel now is over the meaning of the word necessary.

FCC chairman Michael Powell and Kathleen Abernathy, both Republicans, subscribe to the view that necessary means "useful," "convenient," or "appropriate," and claim courts as high as the Supreme Court — in cases going back as far as 1819 — have agreed with that view.

Martin, by contrast, argues that necessary means "indispensable."

He believes both Congress and the courts have insisted that media rules must meet a very high standard in order to remain on the books.

If his view prevails, many current media-ownership limitations could fall off the boards.

Regs could fall

It's hardly a sterile academic debate about a single entry in the legal lexicon. The stakes are high and the structure of the mass media could depend on whose definition of necessary prevails.

The FCC is considering rules that could allow CBS, NBC, ABC and Fox to grow larger nationally, through station acquisitions, and locally, through ownership of multiple TV outlets in a single market.

The commission also might eliminate the 28-year ban on the common ownership of newspapers and broadcast outlets in the same market.

The new dispute within the FCC's GOP majority surfaced March 14 in lengthy statements related to a similar rule review for telecommunications carriers.

The FCC actually adopted the telecom review on Dec. 31, 2002, but waited 10 weeks to release it. During that period, Martin voted with the two FCC Democrats to block Powell's phone deregulation plan with regard to residential markets.

'Very high burden'

By equating necessary with indispensable, Martin has set a high standard, and rules that can't meet it must be either modified or abolished.

"It's a very high burden, absolutely," said Andrew Jay Schwartzman, president of the Media Access Project, a public-interest law firm opposed to broad relaxation of media-ownership rules.

By equating necessary with convenient, Powell and Abernathy have backed a standard that would reduce the burden on the agency if it decided to retain certain media-ownership rules.

"I think they are saying that there is not going to be complete elimination [of the media rules]," said Victor Miller, a media analyst with Bear Stearns & Co.

Realistically, is it fair to say no rule can survive Martin's standard?

"I wouldn't say he is there. But he's obviously closer to there than Abernathy and Powell. As a theoretical matter, something could meet it," an FCC source said.

Martin has voted to retain at least one media rule after finding his necessary-as-indispensable test had been met, the source said.

Last year, Martin voted to extend cable program-access rules an additional five years under a legal requirement that the FCC find that the extension was "necessary to preserve and protect competition and diversity in the distribution of video programming."

Said another FCC source, "The thing that is so silly about it is that [Martin] claims to have this higher standard, but everything always meets it."

Six rules in review

The FCC has at least six mass-media rules under review.

The most fiercely debated one — because its splits the networks from their affiliates — caps a TV-station group to reaching no more 35 percent of TV households nationally.

The networks want the cap to go, but affiliates want it retained.

The FCC's Media Bureau said that evidence exists in support of both positions, and that it's not planning to recommend either keeping or altering the 35 percent limit, passing the hot potato to the five FCC members.

Although Martin supports eliminating the newspaper-broadcast cross-ownership ban, he is believed to be sympathetic to affiliates on the 35 percent cap.

Schwartzman said he considered Martin "to be a possible vote on the 35-percent ownership cap but not a possible vote on much else."

An FCC source said evidence in support of retaining the 35-percent cap was weak and did not see how retaining the cap could meet Martin's "indispensable" standard.

Whatever the FCC decides, "it's going to court," said Miller of Bear Stearns.

"It's amazing — they spent 38 pages writing about the word necessary."

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