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Center for Digital Democracy
AUGUST 1, 2005
9:02 AM

CONTACT: Center for Digital Democracy
Jeff Chester (202) 494-7100

Supreme Court Nominee John G. Roberts' Views on Media Ownership and Telecom Policy Must Be Raised by Senate
Roberts' Role in Controversial Fox TV Case Aligns Him With Big Media Lobby's Consolidation Goals
WASHINGTON - August 1 - The Center for Digital Democracy (CDD) called on members of the Senate Judiciary Committee today to investigate the views of Judge John Roberts on media and telecommunications issues. Among the areas that require intense vetting include the role that Roberts played in developing the legal arguments for the TV networks claiming that limits on national ownership be eliminated (Fox Stations v. FCC).

In Fox, where Judge Roberts served as a counsel for the petitioners, TV networks News Corp./Fox, GE/NBC, and Viacom/CBS made many of their familiar arguments for sweeping away FCC rules that ensure diversity of viewpoint and ownership (and limit their overall national holdings). Among the most troubling claims was that "[T]he National Television Station Ownership Rules Abridges the Free Speech Rights of Broadcasters." They argued that "[T]he rules directly restrict speech by prohibiting broadcasters from exercising their editorial discretion to select and provide the video programming of their choice in the localities of their choice and to the audience of their choice."

Does Judge Roberts believe that federal rules designed to ensure diversity in the U.S. communications system violate the "First Amendment" rights of media and telecommunications corporations? More.

As a defender of the "free speech" rights of media corporations, what are Judge Roberts views on the role of ownership policy to protect and enhance the First Amendment rights of the public?

Key arguments made in the Fox case by the networks were based on the Reagan-era FCC. During that time, the TV networks held political sway as FCC Chair Mark Fowler advocated for wholesale elimination of media ownership rules. Does Judge Roberts believe that the precedent set by the Fowler-era commission, as argued in Fox, support further elimination of media rules? What role, if any, Judge Roberts played in media policy during his time as an official of the Reagan and G.H.W. Bush administrations should also be explored.

Another core network argument in Fox was based on a provision in the 1996 Telecommunications Act that was lobbied in by Murdoch's News Corp. itself. Section 202(h) was the "poison pill" used by the networks to force a review of FCC rules every two years under a framework they designed to force elimination or weakening of media ownership safeguards. Although recently modified in part by a bipartisan majority in Congress, Roberts perspectives on whether 202 (h) demanded, as their brief said, a rejection of FCC "business as usual" approach to policy must be better understood. It was Section 202 (h) that former FCC Chairman Michael Powell used to argue that Congress intended for many of the FCC rules to be scuttled.

Judge Roberts--as the Supreme Court's first "21st Century-appointed" jurist--will likely have a profound impact on the media and telecommunications landscape of the U.S. The quality of American freedom of expression in the "digital age"--such as the openness of the Internet and our ability to access wide ranging and diverse sources of content--will very likely be determined by the U.S. Supreme Court.

Judge Roberts clearly has considerable knowledge and opinions about media and telecommunications. His own personal financial investment portfolio shows a keen awareness. As documented in his 2003 "Financial Disclosure Report" filed May 4, 2004, Judge Roberts held sizeable investments in Time Warner, Intel, Microsoft, Texas Instruments, and Dell, along with such holdings as Cisco, Disney, H-P, Blockbuster and Scientific Atlanta (the latter is a manufacturer of cable TV set-top boxes. Interestingly, Roberts sold his direct shares of AT&T, Comcast, and Motorola in 2003. More.

As a long-time partner with Hogan & Hartson, Judge Roberts was also likely familiar with the issues advocated on behalf of the firm's many telecommunications, media and entertainment clients. Hogan & Hartson prides itself on its ability to shape FCC "rules and procedures." For example, they claim on their website that they "Šprovided corporate and regulatory counsel to a national broadcaster in connection with a series of station exchanges and acquisitions that resulted in the creation of nine television duopolies, including duopolies in the top three television markets--New York, Los Angeles, and Chicago."

Hogan & Hartson has also done extensive work with Rupert Murdoch's News Corp., including its recent financial restructuring and with its international satellite business. Judge Roberts has represented Fox in its efforts to expand its holdings, involving multiple TV stations and a newspaper in New York City.

It is often said that a lawyer should not be held responsible for the views of his clients. While that dubious standard may reflect political realities in today's "everything's for sale" environment, the nomination to the High Court certainly calls for a higher standard. Judge Roberts clearly has views on critical issues affecting the structure of U.S. media and the public's free speech rights. His support of efforts to further consolidate ownership by the nation's media giants and their arguments that corporate First Amendment rights trump the average citizen are troubling. Judge Roberts' views and role over the last two decades on media and communications policy must become a part of the confirmation debate.

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