Martin's Media Ownership Battle--Can he succeed where Powell failed?

Implications: Most of the major newspapers reported last week that the Federal Communications Commission would vote on December 18 to eliminate rules which bar media companies from owning radio, TV and newspapers in the same market, commonly referred to as the cross ownership ban. Lifting the ban, could make it more likely that the Tribune and Clear Channel deals might close before the end of the year, because both deals contain components that violate the cross ownership ban. Tribune has been seeking a waiver of the rules, but this is a tedious and uncertain process.

Analysis:  

In 2003 Chairman Powell attempted to achieve the same result that Martin now seeks; the Powell Commission in a straight partisan vote eliminated the rule. The backlash was swift and vicious, coming from Congress, consumer groups and organizations such as Moveon.com. Angry phone calls from consumers shut down the FCC’s switch board the day the Order was voted and protesters picketed in front of the agency.

Shortly, thereafter the Third Circuit Court of Appeals reversed and remanded the rules to the Commission, finding that the Commission’s “diversity index” was flawed and that the Commission had not provided a sufficient rationale to support the elimination of the ban

So, what is different this time? Can Martin do what Powell could not do? The answer is—“maybe”. What is different this time is that the Commission has held hearing across the country, and Martin may have better data to support his conclusion that the ban is no longer necessary for diversity purposes. But, it is a maybe, because things are never simple in Washington. Martin, will have to withstand attacks from the Hill, powerful Senators, e.g., Obama, Dorgan, Lott, and Biden have all asked Martin to post- phone any rule- making, consumer organizations and civil rights groups are also weighting in agonists the lifting of the ban without an expansion of minority ownership.

If Martin wants to move this from a “maybe” to a “yes “this will be done by year’s end, he will have to obtain support from the Democrats. He needs at least one Democratic Commissioner to vote with him and he needs a Democrat to carry his water on the Hill (and it goes without saying support from a few strong Republicans.) In order to get the Demcratic vote, Martin will have to make concessions on public interest obligations and on minority and women ownership issues. That’s a lot to ask in any year and particularly in an election year. Oh, one last thing to throw into the equation, the Third Circuit Court of Appeals has retained jurisdiction over this issue, so the Commission’s Order, may not be the final word.