Completing Media Ownership Review in 2010 a Challenge for FCC

The goal the FCC set to wrap up its media-ownership review this year will be tough to meet, said commission, industry and public-interest figures we surveyed. The FCC hasn’t issued notices of inquiry or rulemaking and must deal with a legal challenge to the previous review. Issuing a notice of proposed rulemaking (NPRM) soon with proposed rules, rather than starting with a notice of inquiry (NOI), would speed up the work, the officials agreed. They said time is tight for the commission to wrap it up this year, a goal apparently shared by Chairman Julius Genachowski, Media Bureau Chief Bill Lake and others. Congress mandated the reviews every four years, including 2010.

A further complication is an appeals court decision not to put off any longer the commission’s previous ownership rules (CD March 24 p13), said some of those interviewed. They came in an order in early 2008 that resulted from the 2006 edition. “The 3rd Circuit really does kind of up the ante,” said a lawyer with TV station clients. “Because at some point the commission is going to have to say what they really are going to do.” Senior Vice President Andrew Schwartzman of the Media Access Project said “the evident impatience of the 3rd Circuit would counsel in favor of doing an NPRM.” He continued, “They can propose no change just to get the ball rolling or propose rules that are placeholders,” but that’s not typical for the Genachowski commission.

There’s recently been an indication that the Media Bureau expects to issue an NOI soon, but the situation could change because of the court ruling, commission officials said. The bureau had planned to issue a notice last quarter (CD Dec 1 p1). “It’s possible but unlikely that this can be completed this year with either an NPRM or NOI,” Schwartzman said. “Given the passage of time, I think it’s going to be very hard to pull off.” A bureau spokeswoman declined to comment.

Finishing the review this year would be “a huge achievement unless they are really committed to moving this very quickly,” said a broadcast lawyer. Broadcast lawyer Anne Swanson of Dow Lohnes said, “If they issue an NPRM in the next 30 days, yes, they can finish it by the end of the year.” But, she said, “If there were to be an NOI that called for initial comments and reply comments and then there were an NPRM with initial comments and reply comments, we're talking about the 2012 review.”

A year-end finish is possible, considering that the commission did most of its work on the National Broadband Plan from July 2009 to March, said Professor Angela Campbell of Georgetown Law Center’s Institute for Public Representation. “Obviously they have to make it a priority, and I think it should be a priority. … It’s not nearly as big a proceeding as the broadband plan, and I suspect that it will be much smaller this year than in past years, because presumably there will be fewer issues."

The commission’s position in Prometheus v. FCC at the 3rd U.S. Circuit Court of Appeals in Philadelphia will be bolstered if the commission shows it’s pushing forward with the current review, FCC, industry and public-interest officials agreed. The commission could quickly decide on Common Cause’s petition for reconsideration of the last review without input from the 3rd Circuit, some said. But the bureau doesn’t seem to have decided how to handle the petition and the stay.

Lawyers on both sides of efforts for broadcast deregulation agreed that the Common Cause petition should be decided soon. “We would like to see it acted on quickly and granted,” said Campbell, representing Common Cause. The FCC doesn’t have to ask the 3rd Circuit for a voluntary remand that would send the case back to the commission while the petition is acted on, she said. “All the parties involved in that deserve an answer at this point,” said Swanson. “It had several narrow asks in it.” Some media companies opposed the petition, which sought to overturn allowing common ownership of a daily newspaper and a radio or TV station in a large market in some cases, cross-ownership waivers for Gannett and Media General and other rules.

The commission has plenty of information to soon begin a rulemaking rather than an inquiry, some industry lawyers said. “The thought that they would need an NOI, particularly when they already have an ancillary Future of Media proceeding at this time, is pretty close to preposterous,” Swanson said. “With the state of the industry, alacrity should be the name of the game at this point. They are very smart people and an NPRM and comments will give them all they need.” Regardless of what happens at the 3rd Circuit, Commissioner Meredith Baker hopes for “rules that are enforceable,” she said. “Hopefully we can do that this time.”