12.11.2003 12:00 AM
Media Ownership Takes a Holiday
The media ownership audience cap was left hanging this week when the Senate adjourned without passing the bill that contained the measure.

The measure -- to allow a single company to own TV stations reaching 39 percent of the national audience -- was passed by the House on Monday, 242-to-176. It was attached to an $820 billion spending bill that represented the year's unfinished work of Congress. Senate Republicans hammered out the 39-percent threshold behind closed doors during Thanksgiving week and attempted to pass the bill by voice vote Tuesday. They were blocked by a contingent of Democrats led by Senate Minority Leader Sen. Tom Daschle (D-SD), who favored rolling the cap back to its previous 35-percent limit.

Democrats and Republicans alike objected a rulemaking issued last summer by the FCC that would have raised the limit to 45 percent. Such was the outcry over the FCC's action that Congress immediately took the unusual step of threatening to stop it with a congressional veto. The veto threat ignited the ire of the White House, which supported the FCC's decision. Thus, the veto legislation lost steam, but a court challenge by public interest lobbyists did not. The rules were stayed by the Ninth Circuit Court in Philadelphia on the same day in early September that they were set to go into effect.

The current uncertainty of just how the battle over what has now come down to a six-percent solution was reflected in the FCC's Ninth Circuit brief, filed with the court Dec. 9 -- the same day the Senate adjourned:

"... House and Senate conferees included language in ... the omnibus appropriations bill that would amend the 1996 Act to reset the national television ownership cap at 39 percent. ...Such legislation, if enacted, would presumably supersede the 45 percent limit contained in the Commission's revised national television ownership rule and likely moot petitioners' challenges to that rule. As of the filing of this brief, however, the omnibus bill has not been enacted into law."

In its 126-page filing with the Ninth Circuit, the FCC defended its revisions and retraced the convoluted path of how those revisions came to be. Soon after Michael Powell took over as chairman of the FCC, the D.C. Appeals Court denied a motion by Fox to rule the audience-limit cap unconstitutional. However, the Court also found the FCC's existing 35-percent cap to be "capricious and arbitrary," and bounced it back to the agency for further review.

The ruling left the FCC standing between mounting public hostility toward large media companies and the large media companies with armies of lawyers who fight continuously for ownership deregulation. The FCC reasoned that a 10-percent increase in the audience reach cap served both the public and the media companies, in that the cap was retained, but that it recognizes the increase in media outlets

"The Commission's revised rules are a measured response to the substantial changes in the broadcast industry and the media marketplace in recent years," the FCC said in its court filing.

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