Late Media Ownership Order Changes Slammed at FCC and Hill

The order, approved 3-2, likely will face legal challenges even before it takes effect, said Media Access Project President Andrew Schwartzman. It must be reviewed by the 3rd U.S. Appeals Court in Philadelphia, which remanded the last FCC ownership rule rewrite in 2004 in Prometheus Radio Project v. FCC. “Dissatisfied parties on both sides would want to file appeals, and the court will undoubtedly want to schedule a briefing of those appeals,” said Schwartzman, who represents Prometheus Radio. Broadcasters don’t think the proposal deregulates enough. Consolidation foes predict the order, if implemented, will open the floodgates to more deals. “I'm sure Prometheus will give serious thought to it and is likely to sue,” said Schwartzman, citing “a host of procedural issues that will be raised, I would imagine.”

The agency’s media ownership review seemed to violate the spirit of the Administrative Procedure Act, if not the law itself, Copps said. “If I was in charge of managing this proceeding, and looked at the decision that had been rendered by the Third Circuit Court castigating us for administrative shortfalls, I would certainly be concerned about violating the letter of the Administrative Procedure Act and I would be concerned about violating the spirit of the act, too,” he said. “This is a commission that should be moving ever more toward more openness, more transparency.”

Adelstein and Copps were leaving their offices en route to the FCC meeting when the last revision to the draft order was e-mailed to their offices and those of fellow commissioners from Chairman Kevin Martin’s office, they said. The paragraph in question suggests that the agency need not weigh all four factors in reviewing requests for waivers to the ban on common ownership of a newspaper and TV or radio station in the same city, said Copps and other FCC officials. “Sometimes these loopholes are a little bit difficult to discern,” said Copps.

Commissioners were e-mailed another change to the order at 1:57 a.m. the day of the meeting. That revision entirely revamped the waiver standards, Copps and other FCC officials said. Copps said he was irked that Martin told USA Today of the changes hours before clueing in colleagues. The online edition of the paper posted a story on the changes Tuesday evening. The changes simplify cross-ownership deals in small and mid-size cities when a station agrees to air seven hours weekly of news where previously it covered none and when an applicant establishes that it’s in poor financial straits.

Martin made the news change after speaking with public- interest groups, he told reporters late Tuesday. He took up the changes with all other commissioners well before they met, he said. “I tried to engage my Democratic colleagues to see if I could make progress with them on the proposals, and in the end I wasn’t able to really make any,” he said. “I reject the claim that the process has been unfair or even been too rushed,” he told the meeting.

Commissioner Robert McDowell agrees that Martin didn’t act in haste, he said in an interview. “I don’t think there has been an idea that was adopted today that hasn’t had a lot of public comment, either the past 18 months or the 2002 review” later remanded by the Third Circuit, he said. “There may have been last-minute edits, which there are on almost every order right before commission meetings, so nothing is out of the ordinary there.” The FCC and other agencies have wide latitude in making last-minute changes to rulemakings before adopting them, said American University Professor Jeffrey Lubbers, who teaches administrative law. “Ideally, of course, all the commissioners on any commission should have a sufficient chance to review the matters on which they're voting,” he said. “You look at how Congress operates, they vote on things that are inserted at the last minute all the time.”

Adelstein said the late tweaks set a bad precedent. “Major changes were made at the last minute, which isn’t exactly a careful, open, deliberative process,” he said. “Even if I wasn’t going to vote for it, I wanted to make sure we made the waivers as tight as possible. It was very difficult to do in circumstances where we had very little time to really try to figure out what had been done and how to improve upon it.” A change just before a meeting starts is “unusual for any multimember agency,” said Lewis & Clark Professor William Funk, who also teaches administrative law. Neither Funk nor Lubbers are involved in media ownership issues.

Congress has few options left this session by which to express formal displeasure with the FCC media ownership ruling. But Sen. Byron Dorgan, D-N.D., vowed Wednesday to promote a resolution of disapproval in the Senate when it reconvenes Jan. 22. “This FCC ought to hang its head for what it did yesterday, and it’s not over,” Dorgan said in a floor speech. “I'm convinced, and I predict, that a resolution will pass” the Senate. Dorgan, long a critic of looser ownership rules, chastised the commission immediately after its Tuesday vote.

“We've got a lot of people, from both parties, as well as millions of American citizens, saying, ‘Hold on a minute here,'” Dorgan said. “'Don’t do this.’ Instead, the FCC is rushing to do the bidding of big corporations at the expense of the public interest.” Senate Commerce Committee member Dorgan made a veiled threat to FCC funding, noting that Senate Commerce “authorizes the FCC’s budget.” Dorgan also sits on the Appropriations Committee and could influence spending bills affecting the FCC, an aide said.

Rep. Anna Eshoo, D-Cal., introduced a bill Wednesday to increase broadcasters’ public interest obligations. “I've become increasingly concerned about the effect of media ownership on our democracy,” Eshoo said. “I believe relaxed ownership rules and rubber-stamped postcard license renewals have contributed to the degradation of television and radio programming,” she said. Congress needs to “reinvigorate” broadcasters’ public interest requirements, she said.

Congress can’t act on legislation until the FCC rule runs in the Federal Register. That could take weeks, while the text is revised to reflect changes and edits approved by commissioners. The Senate is done with roll-call votes this session. But it’s expected to hold pro-forma sessions Dec. 22, 26, 28 and 31, and Jan. 3, 7, 9, 11, 15 and 18, when speeches on themes other than legislation can be made.

Companion legislation to Dorgan’s bill (S-2332) that would delay the rulemaking was introduced in the House by Reps. Jay Inslee, D-Wash., and Dave Reichert, R-Wash. The Senate approved S-2332 by unanimous consent Dec. 4 (CD Dec 5 p3). Inslee criticized the FCC for refusing to “listen to the thousands of Americans… and not change the media consolidation laws.” Martin told the committee at a Dec. 13 oversight hearing that he wouldn’t delay the proceeding, despite members’ urging that he do so.

House Commerce Committee leaders responded forcefully to the FCC rule. Chairman John Dingell, D-Mich., promised that “these matters will be the subject of rigorous oversight.” Dingell asked Martin Nov. 15 to delay the vote. Dorgan urged a delay in a letter signed by 24 other senators and sent to Martin on Monday. Markey said he is concerned about “the process by which last minute waivers were granted to dozens of existing media combinations without public input.”