IN ISSUING MEDIA ORDER, POWELL LEAVES BALL IN CONGRESS'S COURT

The order: (1) Prohibited mergers among local stations ranked in the top 4 of a market but, depending on the size of the market, allowed some duopolies or triopolies. (2) Tightened radio rules by changing how radio markets were measured. (3) Retained the ban on mergers of national TV networks. (4) Raised the cap on national TV audience reach to 45% from 35%. (5) Replaced the TV-radio cross ownership rule with a sliding scale depending on the size of the market, a move that would allow some combinations. (6) Replaced the newspaper-broadcast cross-ownership ban with the same sliding scale. The cross-ownership bans were eliminated completely in the largest markets. The Commission also issued a further rulemaking to explore opportunities to advance broadcast ownership by minorities and women.

Powell said he believed that in changing the rules, there was one “irreducible” point -- that leaving the rules as they were wasn’t an option. The FCC had to change the rules, he said, because the 1996 Telecom Act said the agency must either justify the existing rules or eliminate them and because the courts had turned back attempts by the previous Commission to maintain the status quo. Powell said the courts had declared that Congress had required the FCC “to continue the process of deregulation” by reviewing the rules every 2 years. “Leaving things unaltered, regardless of changes in the competitive landscape, is a course that only Congress can legitimately chart,” he said.

Today’s media marketplace, Powell said, is “marked by abundance” and the new rules recognize that. He said he realized that the agency’s action had forced a new debate about media regulation and that he welcomed it. However, he said “much of the discussion (and hyperbole) has focused almost exclusively on content,” not the structural rules themselves. The idea of curing the problem of “bland” or “coarse” programming by limiting the size of media companies is “dangerously offensive to the principles of the First Amendment,” he said. A myth has been created that 5 media companies own everything, Powell said, when in truth they control about 25% of channel capacity and happen to produce the programming that most people like to watch. Although some may find that programming objectionable, having programming that is popularly and freely chosen isn’t a crime, he said.

Comr. Abernathy, in her statement, said she was particularly pleased that, under the order, commonly owned stations in a market must air distinct children’s programming to comply with FCC rules, meaning that one station can’t simply “repurpose” another’s children’s shows. She also stressed that companies not in compliance with Commission rules, in most cases, would have to transfer those licenses to small broadcasters.

Comr. Martin focused on the fact that the newspaper- broadcast cross-ownership rule hadn’t been reviewed in 28 years, saying the market today “bears almost no resemblance” to what once was, given the number of TV and radio stations, plus the Internet. Martin said he agreed with most of the decision but parts of it “quite frankly give me pause,” particularly the national limit. While affiliates made a compelling case as to why a cap was necessary for a balance of power, he said the networks made persuasive arguments against a cap.

Comr. Adelstein, in a 39-page withering dissent and news release, said he was disappointed his colleagues had declined to suspend the effective date of the rules -- 30 days after the order is published in the Federal Register -- despite continuing congressional deliberations that could overturn the decision and much public backlash. The order, he said, does little or nothing to promote the public interest and called it “bad policy, indefensible under the law, and inimical to the public interest and the health of our democracy.” He said the agency now had heard from nearly 2 million people and should “be wary of dismissing the America public’s strongly held views.” The resulting rules, he said, were “results driven” by a majority bent on media consolidation. “This is far from over. Congress may prove more responsive to the citizens,” Adelstein said.

Comr. Copps, in his dissent, said the Commission’s decision-making process and record were “deeply flawed” because the public wasn’t given enough time to comment and the proposed text of the new rules wasn’t offered up for public comment. Powell has strongly disagreed with Copps on those points, saying that more people commented on the proceeding than on any other in Commission history. But Copps said the agency didn’t learn any lessons of radio consolidation and that as a result TV might become a similar landscape. He also called the decision to raise the national cap to 45% “arbitrary,” as was the decision to maintain the 50% UHF discount since most Americans experienced UHF stations in the same way as VHF stations. Copps, long an advocate for stronger indecency rules, said the order failed to analyze the impact of media concentration on indecent programming. He called upon hundreds of thousands of people who commented to rise up and “reclaim their airwaves.”