Tribune challenges FCC waiver grant


FCC Chairman Kevin Martin and the two other Republicans outvoted two Democratic commissioners, granting Tribune Company cross-ownership waivers of two years extendible to six months after all pending cross-ownership legal matters are resolved on 11/30/07. Tribune has turned around and appealed that decision, requesting either better waivers — either "permanent of more appropriate temporary waivers" — or the repeal of the rules in their entirety on Constitutional grounds.

The appeal, filed at the US Court of Appeals for the District of Columbia Circuit, says, "Tribune seeks review on the grounds that the Order is contrary to law, arbitrary and capricious, and not supported by substantial evidence. Furthermore, the Commission’s ongoing enforcement of its newspaper/broadcast cross-ownership rule in its existing form is unconstitutional in violation of the First and Fifth Amendments."

A small platoon of attorneys from Sidley Austin LLP headed by Carter G. Phillips submitted the filing on behalf of Tribune. Among those on the distribution list of the document are the FCC, the Newspaper Association of America, Gannett Broadcasting, the Teamsters, The Media Institute, the Media Access Project and several other law firms and legal institutions.

RBR/TVBR observation: So let see what we have here: The Third Circuit remanded the cross-ownership rules as proposed by Michael Powell’s FCC in 2003 for revision or better justification. Current Chairman Kevin Martin put forth a more modest deregulation plan than did Powell, encouraged by the Third Circuit’s verging-on-kind words about cross-ownership. Martin is naturally being attacked on both sides, for going to far or not going far enough. Martin wants to bring his proposal up for a vote in a little over a week, on 12/18/07. The Senate Commerce Committee, behind Byron Dorgan (D-ND) and Trent Lott (R-MS), say no way and have gotten braking legislation out of committee but not yet onto the floor for full body consideration. Tribune is now bringing a different circuit court into the mix. Three of the most popular words in the Washington legal lexicon, "arbitrary and capricious," have once again been uttered. In short, it is looking more and more like our grandchildren will be the ones writing up the final result of this proceeding.