Media Ownership Vote Delay Comes After Clyburn Diversity Concerns

Others at the agency besides Clyburn and her aides said they continue to worry about the rules being sent back to the regulator a third time by the same federal appeals court that remanded the quadrennial review order that was due in 2010 under the Telecom Act. Even with the additional time, the FCC won’t have the studies finished so it can target females and people of color in any redrafted rules (CD Nov 19 p1). Public interest groups that said the FCC still isn’t acting in a transparent manner still seek more time, while nonprofit and broadcast industry lawyers noted the Dec. 26 initial comment deadline is the day after Christmas and replies are due three days after New Year’s Day. That may tamp down response levels, some predicted. An FCC spokesman declined to comment for this story.

Clyburn deemed it “prudent” for her to have requested the 30-day comment cycle, she said of the “necessary and important step.” She said “numerous groups” wanted to “offer feedback” on the Form 323 report. She has been “working hard” with Genachowski’s office on “a roadmap for moving forward in a way that would provide the FCC with the necessary and timely data, relevant under the Supreme Court standard, to put in place a process that will strengthen our media ownership reviews in the future,” her statement said. The commission is conducting an Adarand study now, other agency officials have said. The agency “has long recognized” minorities and women own “stations in disproportionately small numbers,” Lake wrote in the notice. “This fact has been well established in our media ownership docket.” The bureau’s ownership report “signifies a substantial improvement in minority and female ownership data,” and “refinements” to data collection and analysis “are ongoing,” the notice said. “Our continuing efforts to reform and refine our ownership data collection will yield more and better data to support trend analyses in the future.” The extra 30 days in docket 09-182, after “numerous opportunities for public input and participation,” is for the “limited purpose” of commenting on the data, the notice said.

The extent of comments received by the agency in the coming month on Form 323 broadcast ownership data may determine the steps the FCC will take on ownership diversity. That was predicted in interviews this week with an agency official and industry lawyers seeking more deregulation than is in the current draft, and nonprofit attorneys opposed to media mergers and acquisitions. Some commission staff said they wonder how the agency can craft a different definition of entities eligible for extra deregulation than small businesses, the way the draft that circulated Nov. 14 would require (CD Nov 15 p1). Having a public-comment period on the Form 323 data listing ownership rates broken down by demographic groups among U.S. stations as of 2009 and 2011, which the bureau released Nov. 14 and is in the draft order, may help the agency avoid a 3rd U.S. Circuit Court of Appeals remand, agency and nonprofit officials predicted.

The decision to delay the ownership vote came after an unusual stakeholder meeting Thursday afternoon that agency and other officials said was apparently organized by the bureau at the behest of Genachowski’s office. Executives from MMTC, NAB, NABOB and public-interest communications lawyer Angela Campbell spoke in a meeting that some said came together at the last minute with Clyburn, Lake, aides to Genachowski, participants and an MMTC ex parte filing said (http://xrl.us/bn4t23). Attendees said participants discussed diversity issues, with MMTC in place of civil-rights groups in favor of allowing cross-ownership of daily newspapers and TV stations within a town, NAB favoring more deregulation than in the draft and NABOB and Campbell against deregulation.

A meeting later that afternoon continued the conversation in Clyburn’s office, with NABOB Executive Director Jim Winston, Honig, the commissioner and others in attendance, said Honig and others. NAB officials including General Counsel Jane Mago “listened to a discussion about proposals to promote diversity on the record in this proceeding, but did not advocate any particular outcomes” at the first, larger meeting, the association said in a filing (http://xrl.us/bn4t3u). Conversation touched on approaches to diversity, said Georgetown University Prof. Campbell, co-director of its Institute for Public Representation with clients including Prometheus Radio Project, the plaintiff in the 3rd Circuit case. She’s “very disappointed about the timing” of the comment deadlines, she said. “It would be difficult to provide thorough comments in that time period over the holidays.” Honig doesn’t think the “lightning” round he sought will much delay the rules, he said. The nonprofits at the first meeting convened under the auspices of the bureau agreed “on the necessity of having a meaningful eligible entity definition,” Honig said.

Whether the extra comment cycle is enough to entirely avoid a 3rd Circuit remand remains to be seen, depending in part on what additional steps to address diversity the commission takes in a new order likely to circulate sometime early next year, agency and public-interest officials said. Commission staff plan to try to include some additional targeted remedies for broadcasters that could include those owned by minorities, a public-interest official said. They could include some of the several dozen long-pending proposals for things like incubators for stations sold to minorities so a company can initially hold them in excess of what’s allowed under market-by-market limits on station holdings, nonprofit lawyers said. The notice was requested by groups including the National Association of Black Owned Broadcasters and Minority Media and Telecommunications Council (CD Dec 3 p20). Genachowski apparently initially hoped to have voting on the draft order wrapped up this week, an industry lawyer said.

The “lack of transparency” wasn’t addressed by the new comment cycle, said Free Press Policy Director Matt Wood. He took issue with Lake’s comments earlier Tuesday that the draft won’t allow a top-four station and daily newspaper to combine (CD Dec 4 p10). Genachowski’s proposal “is the same as the Kevin Martin proposal” that the 3rd Circuit remanded, Wood noted of the top-20 cross-ownership waiver in the current draft. “All that the new proposal strengthens is the likelihood for increased media consolidation.” Lake’s blog post drew a distinction between this quadrennial review and the one under Martin, where cross-ownership proposals were issued in a news release that also ran as an op-ed in the New York Times. The 3rd Circuit’s summer 2011 remand “criticized the Commission for failing to offer detailed rule proposals in the NPRM, issuing new proposals via Op-Ed/Press Release, and giving the public insufficient time to provide input on the new proposals,” Lake wrote. “The same court opinion praised our current process even in its early stages."

The notice and blog post are part of the agency’s “outreach,” said criminal defense lawyer Ken Ferree, bureau chief under FCC Chairman Michael Powell. “The courts really should never have gotten so far down in the weeds on this issue, which really should have been left to agency expertise,” Ferree said of the 3rd Circuit. “The reality is, at the level of review now involved, there will always be countless things the agency could have done differently that any one with a particular agenda can pick on. Substantively, it seems like the agency is trying hard to get the kind of data that the PI groups are interested in.”