Norman Leventhal is a Partner in our Washington D.C. office
The FCC Commissioners and Staff are busy at work trying to come up with another solution to the clutter that is broadcast ownership. In our December 28 blog post, we noted that it was unlikely such a solution would be presented in early 2013. So far, it looks like we were right.
Nevertheless, no one benefits by having the uncertainty continue for much longer. The stakeholders' positions are well known: broadcasters want far fewer restrictions and public interest and community-based groups want the status quo maintained or even tightened. A recent event that did not help the broadcaster cause was the CBS flap over CNET, one of its properties. While a hotly contested litigation with DISH over the "Hopper DVR' was ongoing, CBS allegedly nixed a CNET award for the advertising skipping Hopper recorder. The Public Interest Group, Public Knowledge, threw this up to the Commission as a demonstration of why loosening media ownership was a mistake.
But, these types of "events" have happened in the past and we doubt a single instance of this kind, even if intentionally retaliatory, will derail what many see as long overdue: placing the broadcast industry on a more level playing field with its largely unregulated competitors. In the meantime, efforts at compromise continue.
The latest to be reported concerns the retention or loosening of the long-standing newspaper-broadcast cross ownership rule. Now, the rule bars either radio or TV stations in most markets from having common ownership with local daily newspapers. It seems that support is building for keeping the TV-newspaper ban while letting some breathing room into the radio-newspaper bar (perhaps by allowing radio-newspaper cross-ownership in circumstances where the radio operator has few licensed operations in the market).
The broader issue, however, is the extent of minority ownership of broadcast properties -- improvement of which is an apparent acknowledged public policy goal. But, it is difficult to see how anyone can make a calculated estimate of whether any particular compromise -- in contrast to another choice not made -- will increase minority ownership or cause it to dwindle even further. The National Association of Black-Owned Broadcasters, in a letter to the Commission dated January 30, just withdrew its support for the compromise broadcast-newspaper rule; in fact, NABOB said it did not want relaxation of any ownership rule.
This is the stuff that is ripe for second-guessing by the courts; a track record on which the FCC has faired poorly in recent years in this particular area of regulation.
We will continue to update you on this important area.
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