July 2011

The Third Circuit Court of Appeals has upheld the Federal Communications Commission's 2008 decision not to loosen the television duopoly, radio ownership or TV-radio crossownership rules and vacated and remanded its loosening of the broadcast/newspaper crossownership rule for failure to meet notice and comment requirements. It also remanded some of the FCC's minority-ownership efforts for further clarification.

The FCC is currently reviewing its ownership rules under a congressional mandate and the court said it could solicit new comment on the newspaper-broadcast crossownership rules in that context, but the court retained jurisdiction over the remand. "Today we affirm the 2008 Order with the exception of the newspaper/broadcast cross-ownership rule," wrote the court, "for which the Commission failed to meet the notice and comment requirements of the Administrative Procedure Act. We also remand those provisions of the Diversity Order that rely on the revenue-based "eligible entity" definition, and the FCC‘s decision to defer consideration of other proposed definitions (such as for a socially and economically disadvantaged business, so that it may adequately justify or modify its approach to advancing broadcast ownership by minorities and women." Broadcasters had challenged the FCC's decision under then Chairman Kevin Martin not to loosen most rule changes, and had challenged its loosening of the ban on newspaper/broadcast cross-ownerships as insufficient deregulation, as well as firing a blunderbuss shot at all media ownership regulations as unconstitutional.

"Today’s decision is a sweeping victory for the public interest," said Corie Wright, policy counsel of Free Press. "In rejecting the arguments of the industry and exposing the FCC's failures, the court wisely concluded that competition in the media – not more concentration – will provide Americans with the local news and information they need and want."

Andrew Jay Schwartzman, Senior Vice President and Policy Director of Media Access Project (MAP), said, “We won on almost every point. This decision is a vindication of the public’s right to have a diverse media environment. The FCC majority knew that its effort to allow more media concentration was politically and legally unworkable, so it tried to end-run the procedural protections that are designed to give the public the right to participate in agency proceedings. It was disappointing that FCC Chairman Genachowski chose to defend his predecessor’s erroneous action, but now that the Court has directed the FCC to make sure the public is not ignored, we can look forward to having a right to meaningful participation as the FCC looks at these questions again.”

Update:

FCC Commissioner Michael Copps said, "This decision is a huge victory for the millions of Americans who have gone on record demanding a richer and more diverse media. The Third Circuit has brought into clear focus the shortfalls of two previous FCCs on media ownership and their lackluster performances in encouraging more minority and female ownership of our broadcast outlets." He added, "It is clear from this decision that those previous Commissions abdicated their responsibility to consider diversity of ownership and diversity of viewpoint when they wrote their flawed rules."

FCC Commissioner Mignon Clyburn said the decision "sends the important message that ownership diversity remains an important aspect of the overall media ownership regulatory framework."

LightSquared continues to try to drum up popular support for its wireless network plans, announcing the creation of what it is calling an “Empower Rural America Initiative.”

The proposed LightSquared network offers a “huge opportunity for broadband in places that don't have broadband now,” a LightSquared spokesman told Connected Planet this morning. “Too much of rural America is on the wrong side of the digital divide.” LightSquared’s rural initiative will be led by an advisory board that currently has three members -- former-Sen Byron Dorgan (D-ND) and former-Reps George Nethercutt (WA) and Charlie Stenholm (TX). Moving forward, the board will be expanded to include additional members, the spokesman said.

The Commerce Committee pledged to produce legislation that would protect jobs and promote new ones. We pledged to repeal an unpopular, unfair, and unconstitutional health care law and replace it. We pledged to scrutinize onerous regulations emerging from the vast federal bureaucracy and put a check on the Executive Branch. We pledged to conduct rigorous oversight and develop forward-looking legislative solutions in response to the problems we uncovered. We pledged to promote an all-of-the-above energy strategy that would harness America’s vast resources and strengthen our partnerships with trusted allies to create a more secure energy future and the economic growth that goes with it. Six months into the 112th Congress, I am pleased to report that we have reached significant milestones on each of these essential goals.

The Commerce, Manufacturing, and Trade Subcommittee responded quickly to high-profile data breaches that put consumers’ private information at risk and imperiled public trust in data security, one of the foundations for e-commerce and 21st century economic growth. Hearings helped identify a series of common-sense reforms that will strengthen data security. Those ideas are being refined and incorporated into legislation that will make long-overdue changes to protect individuals and job creators from the threat of data breach and replace nearly 50 conflicting state security regimes with a single, national approach.

The Communications and Technology Subcommittee promoted promote innovation and assure that federal policy keeps pace with a dynamic and growing technology marketplace. Wireless broadband and U.S. spectrum policy are central to the Committee’s plans to foster job creation and private-sector investment. The Subcommittee held a series of spectrum hearings to inform this national discussion. Spectrum legislation could help create a nationwide public safety network, generate upwards of $20 billion in auction revenue, and generate many times that amount in economic benefit through the direct and indirect creation of wireless broadband-related jobs and commerce. This subcommittee is at the forefront of promoting broadband access for all Americans. American consumers’ ever-increasing demand for mobile broadband services, whether on smartphones or tablets, will require innovative new approaches to free up spectrum for public use.

The Subcommittee also held oversight hearings on the clumsily designed broadband stimulus provisions in the ARRA. Despite being branded as “shovel-ready,” less than $1 billion of the $7 billion in awarded grants have actually been spent and much of that money appears to be poorly targeted. Perhaps an early warning sign, some of the grant money is already being rescinded or returned because of problems with the projects that received awards.
The subcommittee is also advancing a plan to strengthen the integrity of the Federal Communications Commission (FCC) by codifying best practices to promote transparency and certainty in the regulatory process. We have already held two hearings on FCC process reform, including one on a staff draft of legislative reforms. The legislation is designed to ensure that the public has an adequate opportunity to provide input into FCC decisions, and that when the FCC intervenes in the marketplace it has demonstrated a need and narrowly tailored its regulations. The subcommittee is also working to erase dangerous, costly, or simply unnecessary federal regulations from the rulebooks.

The advocacy and public policy group Greenlining Institute objected to the proposed AT&T and T-Mobile merger in California, saying it would hurt competition and eliminate jobs.

The California-based group, which has also opposed the merger in filings with the Federal Communications Commission, asked the California Public Utilities Commission to require more information from AT&T. "The merger would harm competition in the retail value-conscious wireless services market; low-income and other value-conscious consumers would face increased prices and degraded quality of service," Greenlining says in its filing. "The merger would also harm competition in wholesale markets; the elimination of T-Mobile as the dominant value-conscious provider would give AT&T the incentive and ability to engage in anticompetitive conduct in the backhaul and roaming markets."