More than a year after the Federal Communications Commission narrowly endorsed a radical rewrite of media ownership laws in a manner that would have strengthened the hand of media conglomerates, a US appeals court has determined that the FCC went too far.
In one of the most significant setbacks for the Bush Administration's campaign to rewrite regulations to favor big business, the US Court of Appeals for the Third Circuit in Philadelphia rejected the rationale the FCC used to ease media ownership limits and ordered the commission to revisit the issue with an eye toward protecting, rather than undermining, the public interest in diverse ownership or local and national media.
The appeals court panel, which last year stayed implementation of the rule changes, complained that the FCC had relied on flawed reasoning and reached contradictory conclusions to justify rule changes that would have allowed the consolidation of media ownership in local markets across the country. One of the FCC approved rule changes would have allowed a single corporation to own the daily newspaper, as many as eight radio stations and as many as three television stations in the same community.
"The court ruling affirmed what many of us have been saying for a long time," explained US Representative Maurice Hinchey, D-New York, one of the most ardent Congressional critics of the rule changes. "Chairman Powell's gift to media conglomerates was made without basis in legitimate research. He cannot show that the commission's decision was made in the public's best interest. On the contrary, it threatens the ability of the public to have its voice heard and to have access to other diverse voices."
The court's 2-1 ruling requires the FCC to come up with a research-based argument that some public good will be served by allowing the development of a one-size-fits-all media. That's going to be hard to do, as the court rejected the industry-friendly methodology the commission had used to justify the rule changes. At the least, a new push to relax the rules would take months, and perhaps years, to complete.
And time may not be on the side of Powell or his big-media allies.
With the presidential election approaching, the appeals court decision would seem to assure that media ownership regulations will not be loosened before this fall's presidential vote. That raises the prospect that big media's long campaign to relax the regulation of ownership limits on the television, radio and newspaper industries could be thwarted for years to come. If President Bush, a prime proponent of the rule changes, is defeated, Democrat John Kerry would be in a position to create an FCC majority that supports diversity in media ownership.
The commission is currently split 3-2, with three Republicans supporting special-interest demands for relaxation of ownership rules and two Democrats siding with public-interest groups that oppose the lifting of limits on media monopoly. If elected, Kerry could select a Democrat to replace Powell as chairman and, while past Democratic Presidents have often made bad appointments to the FCC, unions that are close to Kerry have been pressuring him to pick a new member who would side with Democrats Michael Copps and Jonathan Adelstein.
"This is a major victory in preventing a handful of huge corporations from controlling what the American people see, hear and read," declared US Representative Bernie Sanders, I-Vermont, a leading Congressional advocate for media reform. "It also vindicates the millions of Americans from across the political spectrum who spoke out and contacted the FCC on this issue. The law unequivocally stands with the public values of localism, diversity and competition in the media, and that's what the court maintained."
Before the FCC voted by a 3-2 margin on June 2, 2003, to endorse the rule changes, groups ranging from Common Cause and MoveOn.org to the National Rifle Association and the Traditional Values Coalition raised concerns about the determination of FCC chair Michael Powell and his two Republican allies on the commission to implement rule changes that would make it dramatically easier for a handful of large media corporations to control the vast majority of print and broadcast communications at the local and national levels. Groups representing print and broadcast journalists, including the Newspaper Guild, the National Association of Black Journalists and the National Association of Hispanic Journalists, were also outspoken in their criticism of the proposed rule changes.
After the commission voted for them, public outcry led to votes in the US House and Senate for different measures to override some or all of the FCC decisions regarding the rules. But pressure from the Bush Administration, and moves by House Majority Leader Tom DeLay (R-Texas) to block necessary votes, have so far prevented the reconciliation of the House and Senate stances.
By blocking Congressional action that could resolve the issue, Bush and DeLay have placed themselves in direct opposition to clearly expressed public sentiments.
More than two million Americans have contacted the FCC and members of Congress demanding retention of limits on media monopoly at the local level and controls on consolidation of broadcast media ownership nationally. And they now have the courts on their side.
The court challenge to the FCC ruling, which was brought by the Prometheus Radio Project in Philadelphia, was considered a long shot initially, as the courts have historically been slow to intervene in such matters. But with strong support from the Media Access Project, lawyers for the Prometheus Radio Project and allied media-reform groups were able to convince the judges in Philadelphia that the FCC had endorsed rule changes that posed a genuine threat to localism, diversity and competition--which the FCC is supposed to protect.
"This outstanding decision comes at a time when unprecedented debate on the role of media outlets in Americans' lives is taking place," said Prometheus Program Director Hannah Sassaman. "Thousands of Americans are telling the Commission and everyone who will listen that consolidation is bad for their communities and families. It is of paramount importance that the FCC use that testimony to inform new ownership rules that will preserve and protect America's diverse, local voices."
Will that happen? Congressional critics of the FCC aren't placing much faith in the commission--at least as it is currently composed.
That's why Sanders, Hinchey, US Senator Byron Dorgan (D-North Dakota) and a bipartisan coalition of media-reformers in both houses of Congress continue to promote legislation that would permanently prevent the FCC from writing rules that favor big media. "The court decision is step one," says Sanders. "The American people, however, will not be satisfied until Congress has totally ended the very dangerous idea of allowing more media consolidation. Now, it is time to become proactive and to fight for legislation which will allow for more localism, more diversity of opinion and more competition in the media."
John Nichols, The Nation's Washington correspondent, has covered progressive politics and activism in the United States and abroad for more than a decade. He is currently the editor of the editorial page of Madison, Wisconsin's Capital Times. Nichols is the author of two books: It's the Media, Stupid and Jews for Buchanan.
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