The Third Circuit U.S. Court of Appeals in Philadelphia handed the public a huge victory last Thursday, and giant corporations a rare loss, in their decision [PDF] on a case that (ironically enough, given the subject matter) most of the public knew nothing about, but one which has the potential to benefit real people with better quality news and information for decades to come.
The case, Prometheus Radio Project v FCC, pitted "Citizen Petitioners" who seek more persons owning local media outlets to ensure diversity in viewpoints and news coverage, versus "Deregulatory Petitioners" who want fewer persons (spell that "corporations") to own local media outlets, and the publicly-owned broadcast airwaves that go with them, in order to enhance their profits.
At stake were the rules determining how many local TV and radio stations one company can own in a single market; whether a newspaper owner can also own a TV or radio station in the same town; and how broadcast ownership by minorities and women should be handled.
The Deregulators challenged the FCC's constitutional and legal authority to set rules and restrictions on ownership of broadcast spectrum licenses, while the Citizen Petitioners sought to protect the FCC's authority, even while challenging a number of new rules the agency speciously attempted to enact without appropriate public input.
Six attorneys representing Free Press, Media Alliance, The United Church of Christ, and Prometheus Radio Project went up against 48 lawyers representing such corporate behemoths as Clear Channel, CBS, Belo, FOX, Cox, Sinclair, Tribune, and Gannett, and groups including the National Association of Broadcasters, plus another 8 attorneys for the FCC and 5 more from the US Department of Justice. The case became a classic David v. Goliath struggle.
The good news this time around, at least for the moment, David finally won one...
The case dealt with current ownership rules, as determined by the Telecommunications Act of 1996 and the Federal Communications Commission (FCC). There are a myriad of rules, among them these which now allow that one party may own no more than:
- two TV stations and six radio stations in the same market (or one and seven);
- three TV stations in large markets where 18 or more stations exist;
- up to eight radio stations in the same town.
The FCC is tasked with making sure the broadcast media --- via the limited broadcast spectrum which is owned by we, the people --- serves the public interest. Every four years, as required by the 1996 Telecommunications Act, the FCC must revisit the issue of public interest in media ownership (the "Quadrennial Review.")
In 2003, the FCC Commissioners held public hearings on media ownership, then essentially ignored what the public told them. The FCC, chaired at the time by Republican Michael Powell, next laid out a group of rules that put more broadcast media stations into fewer hands. The public rose in protest (as covered in my 2009 documentary, Broadcast Blues.)
After Powell's hearings, Prometheus Radio went to court to challenge the new rules. They won a Third Circuit Court ruling which found that the FCC had not properly listened to the public and would need to start from scratch.
So, four years later, from October 2006 to November 2007, the FCC, this time under Republican chair Kevin Martin, once again held a series of public hearings on media ownership, but in some cases, as the court find this time around, they offered the public as little as 10 calendar days notice before the meetings. Worse, as revealed during the trial, the FCC actually buried studies with findings which undercut their own advisement for relaxation of ownership rules. (An Inspector General's report even found that the FCC had a research strategy specifically designed to justify their preconceived goal: the repeal of the newspaper-media cross-ownership rule.)
Then Martin, on November 13, 2007, just four days after the final public hearing, issued an Op-Ed in the New York Times which outlined the newspaper/broadcast ownership rules he was considering. Until then, neither the public --- nor even fellow FCC commissioners --- knew what rules he was considering.
De'jÃ vu. Hold public hearings, then ignore the public. Just as Powell had done four years earlier.
On Thursday then, to the delight of the "Citizen Petitioners," the Third Circuit Court of Appeals decided that, on the issue of newspaper/broadcast cross-ownership, the FCC failed to give the public proper notice and opportunity to comment on the rule-making, and must, once again, start from scratch in its next quadrennial review.
The court also ruled that the FCC's studies surrounding minority and female
ownership of broadcast stations are woefully inadequate, and that topic must
also be revisited in the next quadrennial review. In their decision, they noted
"the Commission referenced no data on television ownership by
minorities or women and no data regarding commercial radio ownership by
women. This is because, as the Commission has since conceded, it has no accurate
data to cite."