Watchdog group representatives last week said they will fight an industry effort to torpedo Red Lion Broadcasting Co. v. FCC-the Supreme Court decision that established the bedrock legal rationale for subjecting broadcasters to media ownership regulation and other special rules.
The landmark 1969 decision held that because broadcasters use a scarce government resource to deliver their programming over the air, the Federal Communications Commission is justified in its special regulation of the industry in the public interest.
The case has been used ever since to rationalize a host of FCC broadcast regulations, ranging from stringent media ownership restrictions to prohibitions on indecent broadcasts.
But in a pair of filings Nov. 19 at the high court, Media General and a coalition of major TV network owners-NBC Universal, News Corp. and Viacom-made clear that they are seriously considering an attack on Red Lion as part of an industry challenge to an appellate court decision scrapping FCC media ownership deregulation earlier this year.
“Media General intends to present the question whether this court should reconsider the broadcast `scarcity’ doctrine articulated in Red Lion,” Media General said in its filing.
“This case raises important questions, including … whether the time has come to revisit Red Lion’s scarcity doctrine,” the networks added, in their own joint filing.
But Jeff Chester, executive director of the watchdog Center for Digital Democracy, warned that industry critics are already rallying opposition. “This is not going to be decided just in the Supreme Court, but also in the court of public opinion,” Mr. Chester said.
As of late last week Media General and the National Association of Broadcasters were declining comment, as were representatives of NBC and Fox. Viacom representatives had not returned telephone calls.
Networks Fed Up
One well-placed industry attorney said the networks are fed up with FCC regulations limiting their ability to add broadcast stations to their portfolios and punishing them for off-color fare that would seem tame on cable.
“The networks have just gotten to the point where they’re saying, `Enough is enough; somebody’s got to stand up for the First Amendment rights of broadcasters,”‘ the attorney said.
Other industry sources warned that an overturning of Red Lion could undermine the legal justification for regulations that many in the broadcast industry support, including must-carry obligations requiring cable operators to carry the signals of local broadcasters.
“You lose Red Lion, you potentially lose must-carry,” said Shaun Sheehan, Tribune VP, Washington.
Said Media General in its court filing, “As many courts and commentators have observed, [Red Lion] is obsolete in light of the telecommunications revolution of the past generation.”
Not everyone in the watchdog community was shaking in his or her boots last week at the prospect of a Supreme Court challenge.
Mark Cooper, director of research for the Consumer Federation of America, said broadcasters have been trying to overturn Red Lion since the case was handed down more than 30 years ago.
“There’s no reason to assume that the court is going to find differently this week,” Mr. Cooper said. “They just aren’t ready to abandon the scarcity doctrine.”
No matter how the industry challenges shake out, Mr. Chester said his group will use the threats to pursue its own goals.
“It further helps us build a case for policies that rein in these rogue media giants,” Mr. Chester said.
Media General and the major network owners broached their threats to Red Lion in petitions with the high court seeking to extend until Jan. 3 the deadline for appeal of the media ownership decision. Without an extension, requests for an appeal would be due Dec. 2.
Also urging a filing extension for appeals in the case were the FCC and Department of Justice.