This is another example of the FCC Chairman waxing oily and politically correct
about "localism" and "diversity," to put everyone to sleep, but then doing
precisely the opposite. Difference being, in this case, almost no one really
gives a damn. Not even this one court.
Just the other day, the Chairman was talking about low powered (analog) FM
stations, like this "diversity" and "localism" stuff was a big priority. Tell
it like it is, Chairman Pai. No one cares about radio station ownership and
diversity and localism. When people flock to Pandora or Spotify, they are
voting with their actions. They get all the diversity in programming that they
care about, diversity in ownership is a big who cares, localism is another big
who cares, and terrestrial radio is clearly unimportant to the FCC. Maybe
that's okay, but when this FCC is consistently disingenuous, it becomes a
turn-off.
Bert
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http://www.tvtechnology.com/news/0002/third-circuit-wont-block-fcc-broadcast-dereg/282708
Third Circuit Won't Block FCC Broadcast Dereg
Says Prometheus did not meet standard for directed action
February 8, 2018
By John Eggerton
WASHINGTON-The U.S. Court of Appeals for the Third Circuit has denied a
petition from Prometheus Radio Project that it effectively stay the FCC's
November vote to deregulate local broadcast ownership. The court suggested the
jury was still out on the FCC's response to the court's direction on ownership
diversity and that Prometheus did not make a case for direct action from the
court.
That court denial of the writ request means the FCC's decision to eliminate
crossownership rules and loosen other local ownership restrictions goes into
effect and could mean that Sinclair Broadcasting can keep more stations in the
Tribune deal than under the old rules or if the court had granted the writ of
mandamus Prometheus sought.
"The third Circuit's decision gives the green light to M&A in the broadcast
sector and has been seen as a good sign by Wall Street," said Adonis Hoffman,
chairman of Business in the Public Interest.
The Justice Department currently has a Feb. 11 deadline for either blocking the
deal or signing off on it, though that could be extended. Sinclair had signaled
it was adjusting the stations it would try to keep in the deal based on the
loosened regs, and the court decision paves the way for such an adjustment.
"The emergency petition for writ of mandamus is denied as Petitioners have not
satisfied the exacting standard for obtaining such relief," the court said
(observing that a writ of mandamus "may issue only if the petitioner shows (1)
a clear and indisputable abuse of discretion or error of law, (2) a lack of an
alternate avenue for adequate relief, and (3) a likelihood of irreparable
injury."
Prometheus had argued the FCC's deregulatory moves were undertaken without the
vetting of their impact on media ownership diversity the court had required.
The FCC said it had vetted that impact, including proposing an incubator
program as part of the decision.
"The Court notes that the exact design of the FCC's new incubator program is
subject to public comment through April 9, 2018," the Third Circuit said.
It directed the FCC to "file a report on or before August 6, 2018 regarding the
status of the incubator program."
"We're grateful that the court rejected the mandamus request and that
meaningful reform of outdated broadcast ownership rules can go forward," said
National Association of Broadcasters EVP Dennis Wharton. NAB had petitioned
the court to let it back the FCC's opposition to the Prometheus writ.
Longstanding opponents of the FCC's broadcast ownership rule decisions-under
both Democratic and Republican Administrations-Prometheus asked the U.S. Court
of Appeals for the Third Circuit to force the current FCC to address diversity
issues that court has long told the commission to address and delay any
deregulation of local ownership rules until that happens.
That came in the emergency request for a writ of mandamus filed by both
Prometheus Radio Project and Media Mobilizing Project.
They also wanted the court to stop the FCC from approving any license transfers
that would not comply with the FCC's previous ownership rules, which could
potentially affect the Sinclair-Tribune deal.
The FCC under chairman Ajit Pai changed course from the commission of his
predecessor, Tom Wheeler, and eliminated some local ownership rules-the
newspaper/broadcast and radio/TV crossownership rules-and modified others.
But both the Wheeler and Pai approaches needed to be responsive to a remand of
the Third Circuit to take the impact of diversity into account when making
those decisions, say the groups, and neither did so.
Prometheus and Media Mobilizing Project, which challenged the Wheeler reg
review as insufficiently regulatory and the Pai review as really insufficiently
regulatory, says neither FCC based their decisions on sufficient diversity
impact information and so filed the emergency request for the writ of mandamus,
which would be the court demanding that the FCC follow its mandate.
They wanted the Third Circuit to stay implementation of the Pai media ownership
deregulatory changes.
On Nov. 17, as part of the congressionally mandated Quadrennial media ownership
reg review, the Republican FCC majority, under Pai assailed by FCC Dems who
strongly dissented, eliminated some decades-old broadcast regulations and
tweaked others in what broadcasters have argued is necessary to allow them to
remain relevant in a sea of less-regulated competitors.
The order eliminated the newspaper-broadcast and the radio-TV cross-ownership
rules; allowed dual station ownership in markets with fewer than eight
independent voices after the duopoly, creating an opportunity for ownership of
two of the top four stations in a market on a case-by-case basis (the FCC is
not calling it a waiver); eliminates attribution of joint sales agreements as
ownership; and creates an incubator program.
In doing so, the FCC reversed a decision by the previous FCC Democratic
majority to leave most of the rules in place. Prometheus had challenged that
decision, too, not because it had left most of the rules in place, but because
Prometheus said it, again, did not sufficiently take diversity into account,
which would have led to imposing more regs, not simply leaving most in place.
That earlier challenge has yet to be resolved and Prometheus also asked the
court this week to consolidate this challenge with that one.
Prometheus argued that the Pai FCC also failed to respond to the Third
Circuit's direction, in remanding a previous attempt to deregulate, that it get
better data on ownership diversity before deregulating.
The recent FCC decision under Pai did also initiate a rulemaking on creating a
diversity incubator program and to consider the definition of eligible entity,
but that did not cut it with Prometheus.
This story first appeared on TVT's sister publication B&C.
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