Any toughening of TV indecency enforcement almost certainly will end up in court -- eventually the U.S. Supreme Court -- regardless of whether it’s initiated by Congress or the FCC, legal experts said. They also expressed pessimism about whether the courts would uphold tougher enforcement, with even the head of Morality in Media telling us the Supreme Court vote would likely be “5 to 4, at best, if we win.”
The U.S. Appeals Court, D.C., Fri. upheld FCC biennial review procedures challenged in 2 cases by Verizon and Verizon Wireless (CD Dec 16 p1). In a decision written by Judge Judith Rogers, the court said the Telecom Act “neither mandates the completion of the [biennial review] process within the biennial year itself nor requires the Commission to repeal or modify every rule that the Commission doesn’t determine to be absolutely essential, and thus does not impose a special evidentiary burden.”
Congress took a step Tues. toward putting the media ownership issue to rest. In a compromise between the White House and congressional Republicans, officials said, the omnibus appropriations bill would establish a permanent 39% broadcast ownership cap -- sidestepping a veto threat, weakening the court challenge to the cap, eliminating questions of waivers and divestiture and making further legislation on the ownership cap unnecessary.
The Appropriations rider on media ownership agreed to by House and Senate negotiators, if signed into law, would have little practical effect on the companies involved in the near future, industry and govt. officials said. That’s because the rider would stop the FCC for only one year from implementing its new 45% ownership cap by blocking any federal money from being used for that purpose. The rider, which is part of an omnibus Appropriations package, would be void after Oct. 1, 2004.
Communications lawyers and public interest advocates said broadcasters could face increased scrutiny when applying for license renewals over the next couple of years. After years of relatively lax enforcement, there are several signs that broadcasters could face stricter enforcement, they said, including: (1) Creation of a Localism Task Force that grew largely from the FCC’s embattled media ownership rule. (2) Calls from members of Congress and Democratic commissioners to examine whether stations are violating public service requirements. (3) Recent record indecency fines against a radio broadcaster. (4) Dozens of fines for public file violations.
Common Cause filed a petition Wed. asking the FCC to deny Paxson’s request to assign its license for WPXJ (Ch. 21, PAX) in Minden, La., to Minden TV Corp. because the sale violates federal network affiliate rules. Common Cause, represented by Media Access Project Pres. Andrew Schwartzman, said the sale is illegal because 5 hours of programming per day and eventually 10% of the station’s digital spectrum would belong forever to Christian Network Inc. (CNI). CNI, founded by Paxson CEO Lowell (Bud) Paxson and spun off as a separate entity, operates under the name The Worship Network and broadcasts midnight-7 a.m. daily. “Insofar as Paxson is on the block, any potential buyer needs to know they're only getting 90% of station,” Schwartzman said. Obligating a portion of the station’s broadcast day and digital spectrum “dramatically impairs the notion of localism,” he said. Media Access Project objected to a similar July 2002 sale Paxson tried in Porterville, Cal. The network tried to sell KPFF (Ch. 61, PAX) to Univision on similar terms. In both cases, the station agreement would have run for 50 years with automatic renewals for successive 10-year periods. In a letter to Paxson attorney John Feore and Schwartzman dated March 10, 2003, FCC Media Bureau Chief Kenneth Ferree sought information to determine whether CNI is a network entity, in which case any agreement prohibiting a station from preempting network programming would violate federal law. Schwartzman said CNI is a network because it provides 35 hours of programming per week to about 60 Paxson stations and several dozen Paxson affiliate stations. Feore couldn’t be reached for comment by our deadline.
The Fox, NBC/Telemundo and Viacom/CBS TV networks have petitioned the 3rd U.S. Appeals Court, Philadelphia, for an en banc rehearing to argue again that legal challenges to the FCC’s new media ownership rules should be heard by the U.S. Appeals Court, D.C. Having lost on a motion to transfer the case in a 2-1 ruling by a 3-judge Philadelphia panel last week (CD Sept 17 p5), the networks asked for a full complement of the judges to hear their case this time around. They argued that “a long and unbroken line of cases holds that… an appeal from an order on remand must be transferred to the remanding court.” Since the FCC’s new rules were a byproduct of 2 previous D.C. Circuit decisions, the networks contend, the latest challenges belong in D.C.
After more than a year, the FCC gave conditional approval Mon. to the merger of Univision and Hispanic Bcstg. Corp. (HBC), ending a long-running debate over whether Spanish-language media should be considered a market separate from their English language counterparts. The decision came in a 3-2 vote, with the 2 Democratic commissioners dissenting.
With the decision by the 3rd Appeals Court, Philadelphia, to keep the media ownership case rather than transfer it to the D.C. Circuit (CD Sept 16 p8), parties are questioning the ideological leanings of Pa. panel. Media Access Project (MAP), representing petitioners Prometheus Radio Project, Media Alliance and the National Council of Churches, wanted the case out of the D.C. Circuit, which has ruled against them repeatedly in the past.
The FCC declared Tues. that the news interview segments on The Howard Stern Show made it a bona fide news interview program. It said the show therefore was exempt from equal opportunity requirements for opposing candidates for political office. The determination came in response to a request for a declaratory ruling filed by Infinity Bcstg., licensee of WXRK(FM) in N.Y.C., which airs the show. Under the Communications Act, if a licensee allows a legally qualified candidate for public office to use a broadcast station, it must afford equal opportunities to other such candidates for that office. But the Act also says that appearances by legally qualified candidates on certain categories of bona fide news interview programs are exempt. Initially, the FCC found only programs such as Meet the Press and Face the Nation fit the bill, but since has widened its thinking to include shows like the old Donahue program that had interviews. The Commission noted in its decision that shows such as Jerry Springer and Politically Incorrect now qualified. To qualify, the program must be regularly scheduled, the licensee must determine the content, format and participants and the determination must have been made by the station “in the exercise of its bona fide news judgment and not for the political advantage of the candidate for political office.” The FCC said The Howard Stern Show qualified. In releasing the decision, the FCC stressed that it took the action at Infinity’s request, and licensees airing programs that met the statutory news exemption need not seek a formal declaration. Media Access Project was up in arms over the decision. MAP Pres. Andrew Schwartzman said FCC Chmn. Powell was wiping out the core protections of the Communications Act. “First, he tried to eliminate rules protecting the public from media monopolies. Now he has aimed at the equal time laws by trying to expand an exemption enacted to cover programs like Face the Nation.” Schwartzman said the law applied to bona fide news interviews, and “Howard Stern isn’t ‘bona fide’ anything. If we have to take him [Powell] to court 3 times a day, we'll do it, because Chairman Powell is damaging democratic self-governance.” Schwartzman said the decision was all the worse because the FCC didn’t give the public a chance to comment.