ANALYSTS READ TEA LEAVES ON MEDIA IN BIENNIAL REVIEW REPORT
Although the biennial review report issued late Fri. by the FCC focused on telephone issues (CD March 17 p1), many media analysts are reading a lot into the decision, trying to divine what it means for the pending media ownership proceeding. That’s because the language dealing with the public interest is very similar in both areas of communications law.
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The 4-1 biennial review decision actually was adopted Dec. 31, but not released until 5 p.m. Fri. An FCC spokesman said it took time for the commissioners to write their individual statements and then share them with the other commissioners to give them the opportunity to rebut one another. There was no effort to try to “bury” the decision, he said, but the timing of the report had more to do with production delays once the commissioners had completed their statements. Although the commissioners never said in the report where they would come out on media ownership, at least one consumer advocate said he believed that the report was a sign of deregulation to come and several said it at least gave an indication of what they would do on media.
FCC watchers are focusing on the part of the report that deals with the standard for review. That hinged on the commissioners’ varying interpretations of the legal language requiring the agency to determine whether its rules were “no longer necessary in the public interest as the result of meaningful economic competition.” In a joint statement, Chmn. Powell and Comr. Abernathy said “necessary” shouldn’t be equated with indispensable, essential or absolutely required. Comrs. Copps and Adelstein voted with them, saying they were pleased that the language wasn’t being construed to mean that the mere presence of competition constituted reason enough to repeal rules. Comr. Martin dissented in part, saying the law was meant as a “significant and coherent deregulatory provision,” meaning the Commission should get rid of the rules unless there was proof they were necessary.
Despite the apparent middle ground embraced by Powell, Media Access Project Pres. Andrew Schwartzman said that, in this instance, “it is the Chairman who is being a wimp about deregulation, while it is Commissioner Martin who is taking the strong stand that would lead to instant and massive deregulation.” Nevertheless, Schwartzman said he believed Powell ultimately would come down on the side of deregulation of media ownership because, “given his basic politics and his basic perspective, I expect a substantial amount of deregulation.” He said he wasn’t surprised that Martin was “a much tougher vote” on deregulation.
NAB Gen. Counsel Jack Goodman said broadcasters were pleased with the decision. NAB has argued that “necessary” means consistent with the public interest and not how the D.C. Circuit interpreted the word in Fox TV Stations v. FCC in early 2002. The D.C. Circuit had seen “necessary” in a more stringent fashion in evaluating ownership, more akin to “essential.” Goodman said the FCC’s decision was consistent with NAB’s contention that the court’s decision was “not a reasonable interpretation of the statute.”
Asked what that decision said about the dynamics of the Commission, Goodman said, “I think we are reading tea leaves and the tea leaves are murky.” However, as to Powell, he said the decision was “consistent with the things he’s been saying in public, which is that he does not believe change will be radical, that there will be ownership rules at the end of the day.”