It was a big day yesterday on media fronts.
* The dismal FCC media ownership rule rewrite of 2007, which CMA had organized around for much of last year, was in legal limbo for quite a while. We heard word yesterday that the legal challenges around this rewrite will be heard in the Third Circuit Court of Appeals in Philadelphia. This is a big deal, and very encouraging news -- it means that the court which struck down the rewrite in 2003 will hear the case against the 2007 rewrite, and may strike it down again. This is what we had hoped for, this is what was expected, and fortunately this is what will now happen.
* I got this email post yesterday about a Supreme Court case that was heard yesterday. I'm taking this optimistically, as I usually do:
[H]ere is a little report for anyone who is interested to hear about the FCC v. Fox case this morning at the Supreme Court. I just got back from oral argument. They were considering the FCCâ€™s decision reviewing Nicole Ritchieâ€™s swearing on the Golden Globe Awards.
The Court was surprisingly unsympathetic to the broadcastersâ€™ arguments that the FCC had been too aggressive and inconsistent in its new enforcement of the indecency rules. In particular, Chief Justice Roberts and Justice Scalia seemed completely unsympathetic to any argument that the FCC had overstepped its bounds. While there were a few concerns expressed about the inconsistency of the FCCâ€™s decision, it didnâ€™t seem to be swaying a majority of the court. So it seems that Martinâ€™s regime might get upheld.
On the constitutional questions, the court seemed unlikely to rule at this go-around, but possibly interested in those issues on remand or in another case. Specifically, this case could have reached two seminal Supreme Court cases that govern the FCCâ€™s ability to regulate broadcasting (Red Lion and Pacifica). [The United Church of Christ] was concerned (and filed an amicus brief with other childrenâ€™s advocates) that the Court might undermine the constitutional justification for the FCCâ€™s regulation broadcasting in a host of other contexts â€“ such as public interest standards and childrenâ€™s television obligations. From this morningâ€™s argument, it seems that the Court will not reach the constitutional issues in this case, but it is possible that once they uphold the FCC, either the FCC or the lower courts could be asked to address the constitutional issues at a later time which could bring them back to the Supreme Court. (In addition, the Justin Timberlake/Janet Jackson Superbowl case is pending and that could be a vehicle also for further consideration).
So, at bottom, it is not a good day for those of us who have been concerned that whether you agree or disagree with the FCCâ€™s decision to regulate indecency in the first place, the current regime has been unpredictable and threatening particularly for smaller broadcasters who can get caught by FCCâ€™s new increased fines and vague standards. On the other hand, for everyone who was concerned that the Court could take this opportunity to undermine the constitutional justification for regulating broadcasting altogether, we will likely live to fight another day.
Of course, all of this is just a prediction based on oral argument and oral argument is never completely clear. The decision wonâ€™t likely come out until next year and, theoretically a decision could wait as long as the end of the term next summer.
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