COURT WANTS TO KNOW HOW NEW OWNERSHIP BILL AFFECTS CASE
With President Bush’s signing of a 39% national broadcast ownership cap law, the 3rd U.S. Appeals Court, Philadelphia, is wondering about its role in the media ownership fight and whether the case it’s considering, or parts of it, are moot. In a letter to the FCC, Media Access Project (MAP) and other parties, the court asked for responses by noon Feb. 2 on how they believed their cases were affected by the new law.
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The court case stems from a challenge to a 45% cap the FCC adopted in June, and related Commission decisions in its biennial review. Prometheus Radio Project wants the cap rolled back to the previous 35%. But since the appeal was filed, Congress and the White House negotiated the 39% cap. It became law Jan. 23 in an omnibus appropriations package. The court, in its letter, asked the parties to file letter briefs commenting on the Consolidated Appropriations Act of 2004, which sets the cap and provides for a quadrennial review of other ownership rules. The court said the briefs should address the effect of the legislation on the court challenges to the ownership cap, the UHF discount and other ownership rules.
MAP, which represents Prometheus, had said in a letter Mon. that appeals of the FCC’s decision adopting the 45% cap “may become moot.” The court said MAP need not resubmit its letter. MAP wrote that the legislation didn’t moot challenges to the FCC’s retention of the UHF discount, saying the law didn’t mention the discount, although Paxson and Univision believed a section prohibited the FCC from modifying the discount in a quadrennial review. “The UHF discount is ripe for review and this court can and should decide the issue,” MAP wrote.
Oral argument is scheduled for Feb. 11. The parties this week were advising the court on how they were dividing their time for arguments. The FCC, given 90 minutes, said Gen. Counsel John Rogovin would make his case in 35 min., focusing on the standard for review and the effect of the new law. Assoc. Gen. Counsel Jacob Lewis planned to argue 45 minutes, focusing on issues relating to local TV, local radio and cross-media ownership. The FCC ceded 5 min. to former FCC Chmn. Richard Wiley of Wiley, Rein & Fielding to argue in support of the FCC’s decision to eliminate the ban on common ownership of newspapers and broadcast stations in local markets. Wiley represents the Newspaper Assn. of America, Belo, Gannett and Morris Communications. The FCC also ceded 5 min. to attorney Barry Gottfried to argue in support of the UHF discount on behalf of Paxson and Univision.
Among those expected to weigh in Mon. with court briefs on how the new law affects the case are the FCC, the major TV networks and some major broadcast groups.