Broadcasters were dealt a defeat last Friday by the U.S. Supreme Court, which refused to consider their appeal of a Third Circuit Court ruling that upheld the FCC’s decision in 2008 to retain the television-radio cross ownership and television duopoly rules. At the same time, the FCC was handed its own defeat by the high court’s refusal to review a Third Circuit decision that invalidated a $550,000 indecency fine assessed by the FCC against the CBS broadcast network for the inadvertent airing of singer Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show. Capping its most recent statutory review of the media ownership rules, the FCC decided in 2008 to maintain limits on TV/radio cross-ownership while permitting waivers of the crossownership rule, under certain conditions, in the top 20 media markets. The agency also relaxed its 30-year-old ban against the cross-ownership of broadcast stations and newspapers in a single market. Although the Third Circuit overturned the revised broadcast/newspaper cross ownership rule on procedural grounds, it upheld the FCC’s decision on TV-radio cross ownership, prompting broadcasters to seek redress before the Supreme Court. Urging the high court to repeal its landmark ruling in Red Lion Broadcasting v. FCC, which cited the scarcity of public airwaves in affirming the right of the FCC to impose media ownership restrictions on broadcasters, Tribune Co., Media General, Fox Television, Clear Channel and other broadcasters argued that airwave scarcity no longer applies to the current marketplace in which the Internet, cable and satellite television services, and other alternative media sources prevail. Separately, the National Association of Broadcasters (NAB) asserted that a split in the lower courts (whereby the Third Circuit upheld the duopoly rules but the D.C. Circuit vacated those rules as arbitrary and capricious) necessitated Supreme Court review. Notwithstanding these arguments, the justices rejected the appeals without comment. Lamenting the Supreme Court’s refusal “to review rules that limit local broadcasters’ ability to compete with our national and multinational pay programming competitors,” NAB vowed to “continue to advocate for modernizing ownership rules that stem from an era of I Love Lucy.” Meanwhile, there was not much surprise at the Supreme Court’s refusal to review the Third Circuit vacatur of the Janet Jackson fine, as that ruling followed on the high court’s decision last month to overturn fines and other penalties imposed by the FCC on the Fox and ABC networks for utterances of “fleeting” expletives and the display of brief nudity. Applauding the court’s action, a spokesman for CBS said the network looks forward “to the FCC heeding the call for the very balanced enforcement which was the hallmark of the commission for many, many years.”
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Supreme Court refuses review of media ownership rules, Super Bowl indecency fine
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