Federal appeals court restores cross-ownership ban on media

[JURIST] The US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] on Thursday that the Federal Communications Commission (FCC) [official website] must revise its current media ownership rules, effectively reinstating a ban on owning a television station and newspaper in the same market. The ban, though not dissolved, had been relaxed in recent years. In 2007, the FCC changed the rule [JURIST report] to allow companies to own newspapers and television stations in the 20 largest media markets provided there were at least eight media outlets in the market to compete. The court found that the FCC did not fulfill the "notice and comment requirements" of the Administrative Procedure Act (APA) [5 USC § 551 text], by allowing comments for only 28 days instead of the traditional 90, and giving notice in a New York Times op-ed. It also criticized the vagueness of the published Further Notice of Proposed Rulemaking (FNPR):

While the new rule varies limits depending on characteristics of markets—specifically, market size and the number of media voices—it was not clear from the FNPR which characteristics the Commission was considering or why. The phrase—"characteristics of markets" was too open-ended to allow for meaningful comment on the Commission's approach. In addition, many central elements of the rule are not based on "characteristics of markets" at all. For example, key aspects of the rule rely on: the amount of "local news" produced by an individual station involved in a potential merger and how that term is defined; the definition of "major media voices," including what counts as a major newspaper; how "market concentration" is measured; whether a station is "failing"; whether a station exercises "independent news judgment" and how that term is defined; and whether a case-by-case approach or a categorical approach to proposed mergers would better serve the public interest. The FNPR also did not solicit comment on the overall framework under consideration, how potential factors might operate together, or how the new approach might affect the FCC's other ownership rules. These were significant omissions.
One of the parties to the case, the Media Access Project [advocacy website] said they were pleased with the decision [press release]: "This decision is a vindication of the public's right to have a diverse media environment."

In 2004, the Third Circuit overturned [opinion, PDF] a previous FCC effort to relax the media ownership rules. The appeals court found the commission did not sufficiently justify or use reasoned analysis to arrive at some of the proposed rule changes. The US Supreme Court let the decision stand without comment [JURIST report].

 

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