The federal government has a “good case” at the Supreme Court in appealing a remand of an FCC policy of fining broadcasters for airing a lone curse during a show, said FCC Commissioner Michael Copps. The U.S. Solicitor General was correct to plan to appeal the fleeting expletive decision by the 2nd U.S. Appeals Court in New York, Copps told reporters Thursday. The Solicitor General’s decision to seek a further extension, to Nov. 1, to file an appeal telegraphs an intention to appeal, said Media Access Project President Andrew Schwartzman. The high court granted the extension, said Schwartzman, a participant in the case, Fox v. FCC. Copps thinks the FCC has “legal precedent” in making “a sound case,” he said. “I think the court has always been cognizant of the influence of media.” FCC Chairman Kevin Martin was “pleased” about the solicitor general’s decision, he said. Broadcast lawyers have said the FCC faces a high hurdle in getting the Supreme Court to hear oral argument on the case because the 2nd Circuit cited procedural, not constitutional, grounds in its ruling. A Fox spokesman said the broadcaster will “respond in due course” after the solicitor general files. - JM

PHILADELPHIA -- The FCC appeared to face doubts during oral argument over an indecency fine it levied against CBS (CD March 17/06 p1) for a split-second broadcast of Janet Jackson’s breast during the 2004 Super Bowl halftime show. The three judges hearing CBS v. FCC at the 3rd U.S. Appeals Court in Philadelphia questioned the logic of the $550,000 penalty. Judge Marjorie Rendell scathingly grilled Eric Miller, assistant to the solicitor general, about why Jackson should be treated as a CBS employee. Miller represented the FCC and the rest of the federal government. Rendell also poked at arguments by Robert Corn-Revere, representing CBS, to the effect that the FCC didn’t do enough to take community standards into account. Other judges also had tough questions for him.

The FCC caught flak from within for its handling of a Comcast CableCARD waiver request, whose denial by the full commission finally was made public late Tuesday. In a rare joint concurrence, Commissioners Jonathan Adelstein and Robert McDowell said the Media Bureau should have been more consistent and less selective in its treatment of many waiver requests.

The FCC caught flak from within for its handling of a Comcast CableCARD waiver request, whose denial by the full commission finally was made public late Tuesday (CD Sept 5 p12). In a rare joint concurrence, Commissioners Jonathan Adelstein and Robert McDowell said the Media Bureau should have been more consistent in its treatment of many waiver requests. Commissioner Michael Copps said the FCC took too long to issue the denial, which came a month and a half after votes were tallied. With the wait over, Comcast said it will sue the agency. Bureau Chief Monica Desai said that contrary to Comcast claims the bureau handled its petition no differently than others.

The United Church of Christ will appeal Tuesday’s Media Bureau dismissal of its opposition to FCC renewal of licenses for two Miami TV stations whose parent companies refused to run the church’s ad. Dismissing the petition to deny renewal of NBC Telemundo’s WTVJ and CBS-owned WFOR-TV, the bureau said the church didn’t say either station declined to air the spot (CD Aug 9 p12). That doesn’t invalidate the complaint, said Media Access Project President Andrew Schwartzman, on behalf of the church. “Networks do not hold licenses, so unless the public is able to challenge network-owned stations through the license-renewal process, there is no recourse,” he said. “We have a strong case for reversal.” Some CBS and NBC affiliates did agree to run the ad touting the church’s inclusiveness, but the church said it sought to buy spots across broadcast networks to reach more viewers.

The FCC’s year-long media ownership review is gaining momentum with the public unveiling of 10 economic studies, after many were delayed, as well as the imminent release of a rulemaking notice on minority ownership (CD July 30 p1), said FCC and industry sources. FCC Chairman Kevin Martin seems poised to circulate a final report and order dealing with most or all aspects of media ownership limits by the end of the first quarter, said an FCC official. A second official said the chairman wants to wrap up public comments on all aspects of the review by year’s end, which could bode well for a final order to circulate on the eighth floor in Q1.

Broadcasters and cable operators again disputed whether home-shopping channels deserve carriage on cable systems. Filing on either side of the issue, the companies were responding to an FCC request for comments. Both sides used the Constitution to frame arguments over a business with more than $7 billion in 2005 revenue. Contending that the 1993 must-carry rules are outdated, cable operators said they violate the First Amendment, requiring the FCC to drop them, because cable has better uses for bandwidth from new services. Broadcasters and channels said 14 years of Supreme Court rulings have reinforced the reasons networks got must- carry protection in the first place.

Advocacy and public interest groups are looking for ways to stymie a possible takeover of Dow Jones by News Corp., even though the transaction presents no obvious avenues, source said. “We've been asked by lots of people to look into it and we think there may be some issues to raise at the commission,” said Media Access Project (MAP) President Andrew Schwartzman. “We're confident there is a basis to pursue things at the FCC. We're being asked to do it and we're giving due consideration to it.” It is unclear if the FCC has jurisdiction, since the deal would not require transfer of broadcast licenses (CD May 3 p5).

EchoStar deems FCC Chairman Kevin Martin’s open access proposal “a step in the right direction” for the coming 700 MHz auction, David Goodfriend, vice president of law and public policy, told a Minority Media & Telecommunications Council (MMTC) conference Tuesday. He said the satellite provider has no position on open access but hopes any such rules will make it easier for a company other than a cable operator or Bell to bid in the auction. Goodfriend said he reads Martin’s proposal to mean it would prevent “blocking” and “locking” of cell phones, resembling FCC program access rules that EchoStar backs. “The fundamental question is whether or not this regulatory construct will become so burdensome as to scare away investors altogether,” he said.

The FCC should tread carefully in letting unlicensed devices operate near TV spectrum after broadcasters vacate 700 MHz frequencies in February 2009, National Association of Broadcasters President David Rehr told a Minority Media & Telecommunications Council conference Tuesday in Washington. Technology companies seeking to use unlicensed devices in so- called white spaces can use “fixed” devices for broadband in rural areas, Rehr said, adding that letting companies use white spaces during the digital TV transition would be a mistake. “It would increase the level of complexity, misunderstanding, confusion,” he said. “I just think it would make everything a lot worse.” Unlicensed white space devices is “really about selling a lot of toys in big cities,” not broadband deployment, he added. Andrew Schwartzman, Media Access Project president, predicted a problem-plagued DTV transition because Congress did not allot enough money for consumer education. “It is simply not realistic to expect the private sector to do what is needed,” Schwartzman said. “It’s not going to work very well, and when we come to 2009 and the transition actually takes place you are going to have a significant gap, I fear.” NTIA, CEA and NCTA officials disagreed, saying industry efforts will suffice. NTIA Administrator John Kneuer said Congress intended that “the lion’s share of the consumer education was going to be performed by the people at this table and in the room.” - JM