Work by career FCC staffers on proposed media ownership rules is progressing, after an appeals court remand of previous regulations, industry and agency officials said. They said the last batch of studies the agency paid outsiders to do is heading toward completion, and a rulemaking notice will be issued later. The commission contracted to pay $725,000 for eight studies, according to contracting documents Warren Communications News, publisher of Washington Internet Daily, got from the agency by a Freedom of Information Act request. The research is on local online content, “civic knowledge” and “engagement,” TV viewing, ownership and other areas. The FCC has released five studies dealing with the Web, TV and radio (WID June 16 p6). Commission officials continue to expect a rulemaking notice on the congressionally-mandated review, due to have been completed last year, to come out later this summer or in early fall. With the July 7 remand of the last media ownership review, which also was finished late, FCC staffers are said by those watching the proceeding to be looking at how to deal in the NPRM with the 3rd U.S. Circuit Court of Appeals’ ruling. Industry executives seek a review that’s quickly completed by addressing the remand and finalizing new rules. Tribune’s top area of interest in the ongoing review is easing limits on cross-ownership, Vice President Shaun Sheehan said. “When the 3rd Circuit first intervened” by sending the review done in 2003 back to the agency, “the one element which they said the commission was correct on was major-market cross-ownership relief,” he noted. “From 2003 until today, you'd almost have to be brain dead not to see that the economic model for newspapers has been severely threatened, and the case for cross ownership relief is self-evident.” The upshot of Prometheus is that this review must focus squarely on diversity, said officials of nonprofit groups that often oppose media consolidation. “The court has for the second time told the commission to take this very seriously,” said Senior Vice President Andrew Schwartzman of the Media Access Project. The most expensive study the FCC contracted outsiders to do is a consumer survey on how they value media, based on the draft purchase request for $198,000 to Donald Waldman and Scott Savage: The study is on how people value media “as a function of local market structure.” The final report was due March 31. It’s among the several studies the commission has arranged for academics and others to do that’s yet to be released. A commission webpage tracks the status of each study (http://xrl.us/bkz6ju). The study hasn’t been submitted to the commission, peer reviewed or revised, the webpage said. Waldman, a professor of economics at the University of Colorado, didn’t reply to a message seeking comment. Some studies were being done later than expected because the process in which fellow academics review the research and comment on it takes time, FCC officials said. They said such peer reviews often are followed by revisions to the report by the authors, and the research is then sent to the commission to be released. Studies the commission contracted to pay a total of at least $234,200 for are on the website, although not all are in final form. One such completed study, which the FCC contracted to pay $16,200 for, is “Less of the Same: The Lack of Local News on the Internet.” Kenneth Wilbur Consulting got two orders for $50,400 each, one for a study on TV viewing as a function of local market structure and another on such structures’ effect on “viewpoint diversity.” Reviewing “local news and public affairs programing is of particular interest because this is where viewpoint will be most evident,” said the FCC statement of work for the second report. It’s meant to study the ownership of local media outlets -- whether independent, part of a company that also has media properties in the same market, or in a joint sales or local marketing agreement. The study on TV viewership and local ownership is meant to measure the availability of TV and radio stations; cable, DBS and other subscription-video distributors; papers; and the Internet. Wilbur Consulting will use data from Nielsen for the study, its statement of work said. Contract documents limit award recipients from discussing their research with outsiders, unless the FCC approves such communications. Such limits are often imposed in government contracts.
Work by career FCC staffers on proposed media ownership rules is progressing, after an appeals court remand of previous regulations, industry and agency officials said. They said the last batch of studies the agency paid outsiders to do is heading toward completion, and a rulemaking notice will be issued later. The commission contracted to pay $725,000 for eight studies, according to contracting documents Warren Communications News, publisher of Communications Daily, got from the agency by a Freedom of Information Act request. The research is on local online content, “civic knowledge” and “engagement,” TV viewing, ownership and other areas. The FCC has released five studies dealing with the Web, TV and radio (CD June 16 p9).
The FCC must remedy paperwork problems and other shortfalls in its cross-ownership and diversity rules (CD Dec 19/07 p1) in the current media ownership review, the 3rd U.S. Circuit Court of Appeals ruled 2-1 Thursday. It threw out those rules, sending them back to the commission to be reworked in the ongoing review. The Philadelphia court noted that the agency is curing some of the old paperwork flaws in the current review. Industry and agency officials told us that can be accomplished fairly easily. A question is whether the 3rd Circuit will rule on the issue once the paperwork problems are remedied, said President John Sturm of the Newspaper Association of America, a petitioner in the case. The court earlier tossed out previous rules promulgated by a different FCC chairman appointed by President George W. Bush. All members of the three-judge panel upheld other rules.
FCC Commissioner Robert McDowell is concerned about part of draft rules on complaints from independent programmers that they were discriminated against on the basis of affiliation by channels owned by cable operators, said agency and industry officials. NCTA stepped up its lobbying against part of the item, after cable operators expressed concerns earlier. McDowell is said to be concerned about the standstill provision of the draft Media Bureau order. It would require cable operators to continue carrying indies while their complaint is pending and after the bureau determined a prima face case was made.
The FCC’s pending cramming notice of proposed rulemaking is couched as a wireline order, but also has a major focus on wireless, said agency officials who have seen the item and industry officials who have been told some of the details. Some proponents of bill shock rules worry that the wireless parts of the cramming order could be the replacement for proposed bill shock rules. When Chairman Julius Genachowski said he'd circulate a cramming NPRM last month (CD June 21 p6), he also indicated that final bill shock rules were on their way.
The Supreme Court’s narrowing of the issues in two indecency cases it agreed to consider as one is relatively rare. The high court grants petitions for a writ of certiorari that define the issues it will consider about three times a year, Scotusblog Publisher Tom Goldstein, who has argued many cases before the court, told us. The justices, with Sonia Sotomayor not participating, said they'll consider First and Fifth Amendment issues (CD June 28 p1). Briefs in the ABC and Fox case would be due Aug. 11 from the government, and from those two broadcast networks Sept. 12, said Senior Vice President Andrew Schwartzman of the Media Access Project, which has sided with networks on indecency. Those types of deadlines frequently are extended, he said.
Virginia Attorney General Kenneth Cuccinelli may also challenge the FCC’s net neutrality rules, Cuccinelli, a Republican, told The Washington Times. Verizon Wireless and MetroPCS also have made clear they will challenge the rules after they're published in the Federal Register, a development that is likely still several months away. Challenges are also expected from net neutrality proponents like Free Press who don’t think the rules go far enough. Cuccinelli called the rules, approved by the FCC in December, the “most egregious of all violations of federal law” and said he would work with attorneys general from other states on an appeal, according to the Times. “The claim that the federal government has never before been charged with overseeing the on-ramps to the Internet is patently untrue,” said Free Press Policy Director Matt Wood, in response to Cuccinelli’s threats to challenge the rules in court. “The Internet grew under, and flourished because of, rules that stopped companies like AT&T from discriminating against applications like Skype.” Media Access Project Senior Vice President Andrew Schwartzman questioned whether a state attorney general has legal standing to file a successful appeal. “This seems like grandstanding to me,” Schwartzman said Monday. “The legal standing of states to challenge the FCC’s decision is questionable, as it is hard to see how the states are harmed by the FCC’s action. And it is hard to imagine that the cable and phone companies are unable to defend themselves.” Cuccinelli’s office did not return calls seeking comment by our deadline. Public Knowledge Legal Director Harold Feld also questioned whether the Virginia attorney general would have standing to challenge the order. “This has all the appearance of political grandstanding now that network neutrality has joined ‘Obamacare’ in the pantheon of things the conservative base loves to hate,” Feld said. “There is certainly nothing that would stop other state AGs from joining a lawsuit. It seems unlikely that it would add anything.”
Virginia Attorney General Kenneth Cuccinelli may also challenge the FCC’s net neutrality rules, Cuccinelli, a Republican, told The Washington Times. Verizon Wireless and MetroPCS also have made clear they will challenge the rules after they're published in the Federal Register, a development that is likely still several months away. Challenges are also expected from net neutrality proponents like Free Press who don’t think the rules go far enough. “The claim that the federal government has never before been charged with overseeing the on-ramps to the Internet is patently untrue,” said Free Press Policy Director Matt Wood, in response to Cuccinelli’s threats to challenge the rules in court. “The Internet grew under, and flourished because of, rules that stopped companies like AT&T from discriminating against applications like Skype.” Media Access Project Senior Vice President Andrew Schwartzman questioned whether a state attorney general has legal standing to file a successful appeal. “This seems like grandstanding to me,” Schwartzman said Monday. “The legal standing of states to challenge the FCC’s decision is questionable, as it is hard to see how the states are harmed by the FCC’s action. And it is hard to imagine that the cable and phone companies are unable to defend themselves.” Cuccinelli’s office did not return calls seeking comment by our deadline. Cuccinelli called the rules, approved by the FCC in December, the “most egregious of all violations of federal law” and said he would work with attorneys general from other states on an appeal, according to the Times. Public Knowledge Legal Director Harold Feld also questioned whether the Virginia attorney general would have standing to challenge the order. “This has all the appearance of political grandstanding now that network neutrality has joined ‘Obamacare’ in the pantheon of things the conservative base loves to hate,” Feld said. “There is certainly nothing that would stop other state AGs from joining a lawsuit. It seems unlikely that it would add anything."
The Supreme Court likely will spend much time on a landmark broadcast indecency decision, reviewing whether the FCC has constitutional authority to find that an isolated occurrence of nudity or instance of cursing is indecent, industry lawyers and professors predicted. They said the 1978 Pacifica case, where the high court found the commission can find certain swear words indecent, is likely to get more attention than the 1969 Red Lion ruling upholding broadcast regulation because of the scarcity of spectrum. That’s because in certifying for oral argument cases involving the ABC and Fox networks, the court on Monday said it will limit consideration to issues involving the First and Fifth Amendments.
AT&T got some political cover from House Democrats last week, in the form of a letter signed by 76 of them who said the transaction will create “good paying union jobs” and expand broadband to unserved areas (WID June 23 p9). The letter doesn’t specifically endorse the deal. Foes of the transaction were quick to question the significance of the letter and whether it will resonate at the FCC or elsewhere in the administration.