Current broadcast ownership could be the status quo for months, even years

The unanimous action by the U.S. Court of Appeals for the 3rd Circuit in Philadelphia can remain in effect for the months or years it takes the case to snake through the courts or until Congress addresses the media ownership issues through the final passage of new laws.

The court’s ruling also raised tough questions for the FCC and its industry supporters about their efforts to reshape the regulatory landscape and leaves doubt about whether the rules will ever be allowed to take effect.

The decision—a surprise to both sides on the issue—leaves the deregulatory strategy of Republican FCC Chairman Michael Powell in disarray, and delivers a significant legal victory to a group of consumer activist organizations that brought the legal case. It also empowers Democratic FCC Commissioners Michael Copps and Jonathan Adelstein, both of whom led a grassroots campaign to make the public more aware of media ownership issues.

While the stay was not awarded on the merits of the case, the court found that allowing the rules to take effect might have caused damage that could not be undone later. The three-judge panel wrote: “The harm to petitioners absent a stay would be the likely loss of an adequate remedy should the new ownership rules be declared invalid in whole or in part. In contrast to this irreparable harm, there is little indication that a stay pending appeal will result in substantial harm to the Commission (FCC) or other interested parties.”

The stay adds momentum to a growing campaign against ownership rules that give additional power to large media corporations. If the court had not issued the stay, the new rules would have lifted the ban on a newspaper buying a television station in the same city and allowing a broadcast network to own a group of stations reaching 45 percent of the national audience, up from 35 percent.

Major media companies have fiercely lobbied for the ownership changes. TV networks such as CBS and Fox would have been allowed to purchase additional television stations. Newspaper companies such as the Tribune Company and Gannett advocated lifting the newspaper-television cross-ownership ban, arguing that local news coverage has improved in areas where newspapers and television can combine resources.

The plaintiff in the case was the Prometheus Radio Project, a Philadelphia group that supports community radio stations, and several consumer organizations, including the Media Access Project, a Washington advocacy group, journalist organizations and the National Council of Churches. Four television networks joined the case in support of the new rules.

“This is a surprise to everybody,” said Gene Kimmelman, Washington director of Consumers Union, a nonprofit advocacy group that opposes the new rules. “Nobody expected we’d get a stay.”

Attorney Andrew Jay Schwartzman, president of the Media Access Project, argued the case. “This action gives us the opportunity to convince Congress and, if necessary, the courts, that the FCC’s decision is bad for democracy and bad for broadcast localism,” he said. “Perhaps it will embolden Congress to overturn the new rules in their entirety. That would save everyone a lot of time and effort fighting it out in the court to obtain the same result.”

As were all parties involved, the FCC was shocked by the sudden decision. “While we are disappointed by the decision by the court to stay the new rules, we will continue to vigorously defend them and look forward to a decision by the court on the merits,” said FCC spokesman David Fiske in a statement.

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