Fox isn't getting its requested permanent waiver of the newspaper/broadcast cross-ownership rule (see 2010060032) that some critics feared the media company would receive in the waning days of the Trump administration. Instead, it got a temporary waiver to continue cross-ownership of WWOR-TV Secaucus, New Jersey, and the New York Post. The FCC Media Bureau order was issued late Friday afternoon (see 2012180069).
Notable CROSS rulings
Fox got some but not all of what it sought from FCC staff Friday afternoon. The company can keep WWOR-TV Secaucus, New Jersey, and the New York Post under a continued newspaper/broadcast cross-ownership rule waiver.
The FCC under Chairman Ajit Pai violated administrative procedure requirements when it used the same record as evidence for a 2017 reconsideration order loosening ownership rules that the prior commission had used to justify keeping them, said the public interest group respondents in a brief filed Wednesday in the broadcasters' and FCC's Supreme Court appeal of Prometheus IV (see 2011170057). The FCC “first concluded that largely retaining local rules was necessary for the public interest,” said groups including Prometheus Radio Project, Common Cause and the National Association of Black Owned Broadcasters. “One year later, upon reconsideration of the same record after a change in Commissioners, the Commission reversed course.” The brief countered broadcaster and FCC arguments that the 3rd U.S. Circuit Court of Appeals’ retention of jurisdiction has stalled broadcast deregulation for years. “Any purported ‘freezing’ of ownership rules is the Commission’s doing, not the Third Circuit’s,” the document said. "The Commission itself re-adopted most of its rules in 2008 and 2016. The Commission (until now) declined to repeal the newspaper/broadcast cross-ownership rule entirely, and the Commission took nearly ten years between this 'quadrennial' review and the last one." The respondents’ argument “isn’t so much about diversity as about the basic tenets of administrative law,” said University of Minnesota assistant professor-media law Christopher Terry. He said it’s hard to tell how the justices, some of whom seem focused on the question of judicial deference to federal agencies, will react. "The appellate court reviewed the FCC's work and found it failed the bare minimum for a federal agency,” said United Church of Christ Office of Communication attorney Cheryl Leanza on the office's website: “The lower court should clearly be upheld." The 3rd Circuit “rejected bad FCC media ownership rule changes four times because each time the agency ignored the Court’s demand for evidence and a reasoned explanation,” said former Commissioner Michael Copps, now special adviser to Common Cause, in a release. The FCC didn’t comment. Oral argument is Jan. 19.
The FCC has repeatedly ruled that Fox’s common ownership of WWOR Secaucus, New Jersey, and the New York Post is in the public interest, and “there is no evidence that that conclusion is any less true today,” said Fox in a reply filing in docket 20-378 posted Wednesday (see 2012020058). Free Press submitted 9,779 signatures urging the FCC to deny Fox’s request. “Murdoch’s media empire is a cancer on American democracy and this lame-duck administration must not be allowed to grant favors for their patrons,” wrote signatory Ken Stewart, of Purcellville, Virginia. “Free Press’s attempt to delay consideration of Fox’s waiver request should be rejected,” said Fox. The request doesn’t depend on the Prometheus IV challenge before the Supreme Court or the quadrennial review, so it doesn’t need to be delayed to account for them, Fox said. The FCC ban on newspaper/broadcast cross-ownership is “an outmoded relic” that “has no place in today’s competitive media marketplace,” said the News Media Alliance.
Senate Commerce Committee Chairman Roger Wicker, R-Miss., is open to a U.S.-EU technology council effort to address the Privacy Shield and other tech issues, he told us Wednesday: “I am open to suggestions to a very tough, tough problem that may defy a solution.”
Reject Fox’s call for a permanent waiver from the newspaper/broadcast cross-ownership rule for WWOR-TV Secaucus, New Jersey (see 2011240063), said Free Press, the United Church of Christ Office of Communication and Common Cause in joint comments to the FCC posted Wednesday in docket 20-378. Don't rule on such a waiver when the White House and FCC are about to change hands and the NBCO faces Supreme Court review, they said. “If the Commission were to accept Fox’s utterly circular argument, basing the necessity of any waiver grant on little more than the applicants’ own self-serving opinion of its necessity, then it would render the agency’s own rules useless,” they said. “Fox’s string of temporary waivers does not create a precedent to support granting it a permanent waiver.” Examine "WWOR’s history and whether it is currently meeting its public interest obligations and serving New Jerseyans," the filing said.
Comments were due on Fox's newspaper/broadcast cross-ownership rule waiver request Dec. 1 (see 2011240063).
China made the strategic “and unfair” decision to ban or discriminate against foreign internet companies in China, and now Chinese firms “want to be able to enter foreign markets,” reported the Information Technology and Innovation Foundation. The Biden administration should work with U.S. allies to “embrace reciprocity” under World Trade Organization rules and principles, said ITIF. As long as China doesn't let foreign internet firms operate fairly in China, those nations should enact measures that “exclude or disadvantage” Chinese internet firms in their own and third-country markets until there's reciprocity, ITIF said. There’s likely little that other governments can do to open up China’s internet market, “but they can and should contest Chinese firms’ efforts to gain market share overseas,” it said. The Commerce Department “should expand and upgrade its network of digital attache positions in China and other U.S. embassies around the world,” it said. “The next administration should work more aggressively in international bodies to defend cross-border data flows and empower industries to forge international standards that ensure a level playing field.”
The FCC Media Bureau extended the deadline for comments on Fox’s request for a permanent waiver of the newspaper/broadcast cross-ownership rule (see 2011160037) from Nov. 27 to Dec. 1 in response to Free Press’ call for more time, said an order Tuesday. Replies are now due Dec. 8. The bureau granted the extension because Fox’s waiver request wasn’t available in the electronic comment filing system until Nov. 17, though the public notice announcing the comment dates said it was available Nov. 13. “A brief extension of time for interested parties to submit comments is appropriate,” the order said. The bureau said Free Press’ request to delay the proceeding indefinitely isn't “warranted.”
Delay consideration indefinitely of Fox’s request for permanent waiver of the newspaper/broadcast cross-ownership rule (see 2011160037), Free Press asked the FCC in a request for extension of time posted in docket 20-378 Monday. The request's timing and the opening of the proceeding are inappropriate, said Free Press. “However cloudy Fox and friends may fear their future is under a new administration, there’s no reason to steam ahead on insufficient notice in the wake of an election and the week of Thanksgiving, all while the rules in play are still in court.” The late Friday issuance of the public notice on the matter and a commenting deadline the day after Thanksgiving “appear designed to tip the scale heavily against public participation and in Fox’s favor,” Free Press said. The proceeding occurring during a presidential lame-duck period and after Congress asked the FCC to refrain from controversial actions is also significant, Free Press said. “No matter the current president’s apparent unwillingness to accept reality, a transition is underway,” Free Press said. “With it will come a change in the Commission’s majority and in its chair, at whose direction the Bureau initiated this proceeding so conveniently timed for Fox but no one else.”