Around, around the wheel it goes, where it stops, nobody knows. That could be how a court in Las Vegas or Atlantic City might decide where the many and various challenges to the latest FCC ownership rulemakings will go, but in this case, the deciding court is in San Francisco, and it has a stack of briefs to contend with, rather than a roulette wheel. Broadcast owners would like to see the case heard in the Court of Appeals for the District of Columbia Circuit in Washington DC; opponents of media consolidation are pulling for Philadelphia’s Third Circuit Court. According to The Deal, watchdog Media Access Project is arguing that the Third Circuit had the case last, and its president Andrew Schwartzman has pointed out that “…the passage of time does not magically convert the remand proceeding into a different case.”
RBR/TVBR observation: The Deal notes that even if the case goes back to the Third, it may well uphold Kevin Martin’s modest 12/18/07 loosening of the rules. Martin’s change would allow newspaper/broadcast cross-ownership in the top 20 DMAs, and makes no other changes – ignoring a raft of deregulatory moves attempted 6/2/03 by his predecessor Michael Powell, much of which was remanded to the FCC by the same court. At the time of the remand, the Court itself noted that oftentimes cross-owned combinations are the premier news organizations in a given market. Others have since countered that such organizations get that way by so dominating local news that other companies largely abandon any thoughts of seriously competing. But the Third Circuit may be predisposed to allow this partial modernization of the cross-ownership rule.
As for the venues, both the Third and the DC Circuits love throwing around the phrase “arbitrary and capricious.” That’s generally what the DC Circuit thinks of attempts at regulating broadcast owners; and it’s what the Third Circuit generally thinks of attempts to deregulate broadcast owners. Since many of the complainants in the immediate case think Martin should have tried to push through more of Powell’s original package, big media ownership interests have still been pushing for the DC Circuit, even if they might get a win in the Third on the narrow FCC December 2007 rulemaking.