Rather than focusing on jurisdictional issues given prominent play in the plaintiffs’ case, the U.S. Supreme Court questioned plaintiffs in the Brand X cable modem case about how the FCC defines an information service. Justices Antonin Scalia and Stephen Breyer closely queried plaintiffs about the FCC’s classification of cable modem service as an information vs. a telecom service.

Rather than focusing on jurisdictional issues given prominent play in the plaintiffs’ case, the U.S. Supreme Court questioned plaintiffs in the Brand X cable modem case about how the FCC defines an information service. Justices Antonin Scalia and Stephen Breyer closely queried plaintiffs about the FCC’s classification of cable modem service as an information vs. a telecom service.

The U.S. Dist. Court, Conn., ruling that The Tribune Company was in violation of the FCC’s newspaper-TV cross- ownership rules (CD March 22 p7) may not affect similar cases, said Media Access Project CEO Andrew Schwartzman. “Other cases have much more colorful claims,” he said. An FCC source said it was too soon to determine how the ruling would possibly affect other broadcasters who seek waivers to the media ownership rules. The ruling that the Tribune divest its WTXX (WB) Waterbury, Conn., station was “wrong and seriously flawed,” the Tribune said in a statement late Mon. The Tribune, which also owns WTIC (Fox) in the same market, purchased The Hartford Courant in 2000, putting it in violation of the FCC’s newspaper- broadcast cross-ownership ban. Since then, the Tribune was granted two 6-month waivers to divest WTXX. The Tribune then sought a permanent waiver. Schwartzman said the Tribune didn’t show that it was working to sell the station but was merely waiting for the courts to rule on the FCC’s media ownership rules. The Tribune argued that the district court judge reached his decision by applying FCC rules that are currently on remand from the 3rd U.S. Appeals Court, Philadelphia. The Tribune, which is appealing the ruling, said nothing in the court’s decision “changes our view on the likelihood of cross-ownership relief. We continue to believe the rule will be relaxed and all Tribune markets will be in compliance without required divestitures.”

As expected, the FCC officially opened a review of the sale of several Okla. stations by a former state senator convicted of committing perjury (CD March 7 p16) but FCC Chmn. Powell and Comrs. Copps and Adelstein said they shouldn’t be recused from the proceeding. Media Access Project Pres. Andrew Schwartzman had urged the agency to reconsider the sale. “It is of course open to any commissioner to recuse himself from a proceeding out of an abundance of caution. But to take such action when there is no basis for doing so threatens to encourage unwarranted recusal requests and interfere with the efficient and effective functioning of the agency. We therefore decline to recuse ourselves from this proceeding,” the comrs. said.

The Media Access Project engaged in unlawful ex parte conduct when it urged the FCC to reopen the sale of stations by a former state senator convicted of committing perjury, an attorney representing the buyers and sellers in the case told the FCC. Media Access Project last week successfully urged the FCC to reconsider the sale of former long-time state Sen. Gene Stipe’s (D-Okla.) stations to the successor of his Senate seat, Richard Lerblance (D) (CD Feb 28 p4). Unbeknownst to the buyers and sellers, represented by Richard Zaragoza at the FCC level, Media Access Project Pres. Andrew Schwartzman had been conducting a “campaign” to prohibit the sale, Zaragoza said in a request for recusal and investigation into Media Access Project’s conduct. At issue is an unpublished staff decision approving the transfer. Schwartzman had argued the Commission had never before approved a license transfer where the licensee had been convicted of perjury. Schwartzman through several e-mails to Commission staff questioned the decision and then filed a letter explaining why he didn’t think his communications were subject to certain ex parte rules. Media Access Project could have filed public pleadings challenging the Bureau’s action but chose not to, Zaragoza said. He said his clients don’t condemn Media Access Project for wanting to communicate concerns over a transaction. “Instead, they condemn Media Access Project for the unlawful ways in which those communications were made, by presenting one- sided arguments that mischaracterize the facts and law, without offering the parties the opportunity to refute those arguments in a timely fashion,” he said. Media Access Project is forcing the parties to “unscramble the egg” at an enormous disruption to people’s lives including the potential health risk of Stipe, 78, who is already in poor health, he said. In response to the request Schwartzman said: “The petition attempts to divert attention from [Zaragoza’s] client and the Commission’s obligations to address matters relating to broadcasters’ licenses.”

Media Access Project urged the FCC to reconsider a Media Bureau decision that approved the transfer of licenses of 4 radio stations by a former state senator convicted of committing perjury -- a type of transaction the Commission has never before permitted.

Long-time NAB Pres. Eddie Fritts officially launched the process of determining who will succeed him, reigniting speculation about his replacement. Fritts, 63, said he began the process now after witnessing the long succession processes at other associations, such as NCTA, MPAA and CTIA. Fritts’ contract runs until April 2006. He will continue as a consultant until 2008. “We are looking for someone who is skilled in the ways of Washington and who has a good reputation for unifying the industry,” Fritts told us.

Long-time NAB Pres. Eddie Fritts Wed. officially launched the process of determining who will succeed him, reigniting speculation about his replacement. The development prompted CEA Pres. Gary Shapiro to praise Fritts as a worthy adversary on many issues. Shapiro said Fritts had given him a “heads up” early Wed. of the impending development, saying it typified the 15-year relationship he and Fritts had shared in Washington.

Sinclair Bcstg. said it plans to appeal the FCC’s expected denial of its application to take over the licenses of 5 stations currently owned by Cunningham Bcstg. “If it’s rejected, we will appeal on the basis for the denial,” said Sinclair. Gen. Counsel Barry Faber.

The federal govt. won’t join a request that the U.S. Supreme Court overturn a lower court decision rejecting FCC action to ease media ownership limits, officials confirmed. The decision by the U.S. Solicitor Gen. (SG) and the FCC not to appeal is said to make it highly unlikely that the Supreme Court will hear the case.