Ruling Moves Deregulation Back to FCC

Jun 20, 2005  •  Post A Comment

Handing the controversy over media ownership deregulation back to the Federal Communications Commission, the U.S. Supreme Court last week refused to review an appellate court decision last year that threw out an effort by agency Republicans to loosen the rules.

But while the high court’s decision gives the agency the option of trying to deregulate anew, industry sources said new deregulation

is unlikely anytime soon because Republican FCC Chairman Kevin Martin doesn’t have the votes to move on the issue.

“The first thing [Mr. Martin] wants to do is get a full complement of FCC commissioners,” an industry executive said.

“It’s all in limbo for awhile,” added another industry source.

Mr. Martin’s hands are tied because the agency, which is authorized to have five commissioners, is currently deadlocked with two Republicans and two Democrats. While Mr. Martin and Kathleen Abernathy, his GOP colleague at the agency, support deregulation, the agency’s two Democrats-Michael Copps and Jonathan Adelstein-are staunch foes on the issue.

With Republicans currently in control of the White House, Republicans are supposed to have a three-vote majority at the FCC.

But White House efforts to give Mr. Martin the votes he needs for a majority have apparently stalled, in part because two of the candidates that Sen. Ted Stevens, R-Alaska, had been promoting for a Republican seat at the agency have taken themselves out of the running due to conflicts of interest and other concerns.

As of late last week there appeared to be no shortage of interested suitors for FCC vacancies, with two White House staffers now said to be campaigning for Republican slots-Ruben Barrales, deputy assistant to the president and director of inter-governmental affairs, and Richard Russell, associate director for technology in the White House office of science and technology policy. Also said to have his hat in the ring for a Republican seat is Howard Waltzman, chief counsel for the House Energy and Commerce Committee, who is backed by the committee’s chairman, Rep. Joe Barton, R-Texas.

While four commissioners are currently seated at the FCC, there are actually three vacancies to fill: two Republican seats and one Democratic.

One of the Republican seats is vacant now. The other is occupied by lame duck Ms. Abernathy, who is eager to move on. The seat of Democratic incumbent Michael Copps expires at the end of the month.

Complicating the White House’s mission is that to get confirmation approval of Republican candidates from Senate Democrats, it will have to fill all three vacancies at once in a package deal that is expected to include a renomination of Mr. Copps.

Mr. Martin has been waiting for a majority since President Bush named him FCC chairman March 18. Now some sources are speculating that he might have to wait until next year-particularly if Sen. Stevens, who chairs the Senate committee with oversight over FCC nominations, decides to advance yet another candidate for a Republican seat.

Still, some industry officials were expressing confidence that at least some deregulatory relief might be forthcoming as soon as next year, because a provision in the law requires the FCC to review the need for its media ownership restrictions periodically. Under the provision, the next review is supposed to take place next year.

“The commission has a statutory obligation to review the rules,” said Shaun Sheehan, Tribune VP, Washington. The Tribune Co., which owns television stations and newspapers in the nation’s top three markets, has said it wants the FCC to loosen regulations that bar owners of daily newspapers from merging with broadcast stations in their markets.

In a major threat to the legal rationale for broadcast ownership restrictions, TV network and newspaper owners urged the high court to use the media ownership rule case to overturn Red Lion-the landmark 1969 decision by the Supreme Court that established the justification for many radio and TV industry rules.

But the high court’s decision last week kicks all the deregulatory issues back to the FCC, which will either have to pass on deregulation or try to deregulate again without raising the hackles of the justices on the Third Circuit Court of Appeals in Philadelphia.

“The ball is back in the FCC’s court,” said Andy Schwartzman, president of the activist Media Access Project, which led the charge against the deregulation in the appeals court. “[The FCC has] to redo their decision, this time without a bias in favor of deregulation,” he said.

Added Jeff Chester, executive director of the watchdog Center for Digital Democracy, in a statement: “Now Big Media’s political flacks will swarm over the FCC and Congress, plying their lobbying wares [money, airtime, revolving door employment]. [Mr.] Martin needs to get the facts-not the media industry spin. If he pursues a [former FCC Chairman] Michael Powell, ‘I don’t need the facts, because I know the facts’ approach, his tenure will be marked with a similar legal and public disgrace.”