Fox, Viacom/CBS, and GE/NBC Tell Supreme Court: FCC Ownership Rules Violate Our First Amendment Rights!

 

November 29, 2004

Three of the country's most powerful media corporations have asked the U.S. Supreme Court for a thirty-day extension as they consider whether to submit arguments designed to eliminate media ownership safeguards.  It's clear that these giants are going apoplectic over the decision by the Third Circuit US Court of Appeals last June, which sent most of Michael Powell's conglomerate love letter back for agency review.  

In a joint filing by Fox, NBC/Telemundo, and Viacom, the networks continue their long-running disinformation campaign and abuse of the First Amendment.  In their November 19th petition, the gang of three tell the Court that Congress was so "skeptical of the continuing need" for media-ownership rules that "the 1996 Congress enacted Section 202(h) of the Telecommunications Act, which directed the FCC to 'review…all of its ownership rules biennially,' to 'determine whether any of such rules are necessary in the public interest as the result of competition,' and to 'repeal or modify any regulation it determines to be no longer in the public interest.'"  

The 202(h) provision has been cited repeatedly by the networks and other media moguls as the key legal rationale for all media ownership rules to be swept away (except those they favor, of course).  But the networks didn't tell the Supreme Court that one of them had placed the provision in the 1996 legislation as a "poison pill," designed to be a sort of "Manchurian Candidate" legal provision that would--as it has--helped them in their campaign to destroy media ownership safeguards.

It shouldn't come as a surprise that Rupert Murdoch's News Corp. was responsible for placing the 202(h) language in the 1996 Telecom Act.  According to a 2003 Cable World article, "Put the Blame on Peggy, Boys," News Corp. lobbyists were frustrated because Congress would not agree to drastically weaken the ownership "cap" on the number of TV stations a company could operate.  So the lobbyists "devised a plan to keep the cap issue in play after the bill…passed."  "You have to think long term," said former News Corp. congressional lobbyist Peggy Binzel, who devised the strategy.  "…[W]hen dealing with Congress, the front door may be locked, but there's always a window open somewhere."

Cable World reporter Alicia Mundy reported that Binzel and her News Corp. colleagues understood that the provision would serve as a "launching pad for a court challenge."  And that's what they did.  News Corp. immediately challenged the FCC for failing to adequately meet the provisions of 202(h).  As the article notes, FCC Chairman Powell has been citing the 202(h) provision as his principal legal mantra for justifying why ownership safeguards should be scrapped.

The networks also told the Court they are considering whether to ask it to "revisit Red Lion's scarcity doctrine."  All along, the networks have declared that the media ownership "rules unduly limited their freedom to engage in constitutionally protected speech, in violation of their rights under the First Amendment."  Media General, the newspaper and broadcast conglomerate, told the Supreme Court in its application that the scarcity "doctrine is obsolete in light of the telecommunications revolution…."

The broadcast lobby is now privately debating the wisdom of seeking a Supreme Court decision.  By arguing that scarcity is no longer a valid framework for broadcast policy, the industry stands to lose billions of dollars worth of special interest policies it has successfully lobbied for, including favorable cable and satellite access.  But undoubtedly the networks and other broadcasters will offer the Court some self-serving argument that will allow them to continue to receive federal corporate welfare.

The U.S. Department of Justice also requested an extension, as it decides whether to pursue an appeal.  Petitions to the court will be due January 3, 2005.