Late on Friday -- which FCC watchers know is the only time new policies are announced- the agency effectively granted Tribune Co. further waivers [PDF] to operate both TV stations and the major daily newspaper in Chicago, Los Angeles, New York, Miami and Hartford Conn.
The FCC had been under intense lobbying pressure to approve the waivers so that real estate magnate Sam Zell could complete his complex buyout of Tribune before the end of the year. But FCC Kevin Martin didn't stop there.
The FCC could have issued a single temporary waiver while it sorts out the rules governing newspaper-broadcast cross-ownership everywhere. But the FCC's maneuver is far more complicated -- and devious.
Rules made to be broken
Under the terms of the FCC's order, which passed on a 3-2, party-line vote, Tribune would get a permanent waiver to operate WGN TV and radio and the Chicago Tribune in the nation's third-largest city. In the other markets, the company gets waivers for at least two years or six months after the end of litigation -- whichever is longer.
Here's the catch: Tribune's actual request for a waiver was denied, but they'll automatically get a two-year extension if they sue the FCC for denying that request.
This arrangement is unprecedented and actually encourages Tribune to file a lawsuit to get the decision tossed out. Here's how FCC Commissioner Michael Copps, who cast one of the dissenting votes, describes [PDF] Martin's evil genius:
If the majority simply granted a two-year waiver to Tribune - which would have been the straightforward thing to do - Tribune would have been unable to go to court because a party cannot file an appeal if their waiver request is granted. So what does this Order do? It denies the waiver request but offers an automatic (and unprecedented) waiver extension as soon as Tribune runs to the courthouse door, lasting for two years or until the litigation concludes - whichever is longer. Presto! Tribune gets at least a two-year waiver plus the ability to go to court immediately and see if they can get the entire rule thrown out.
It gets worse. The 3rd U.S. Circuit Court of Appeals -- which rejected the FCC's last attempt to gut media ownership rules in the landmark Prometheus v. FCC decision -- reserved the right to review any new rules issued by the FCC. But Friday's order would let Tribune take its case before the far more industry-friendly D.C. Circuit. While that court can't eliminate the ban on "newspaper/broadcast cross-ownership" entirely, it could do serious damage.
The fix is in
So basically Martin is asking for a lawsuit from Tribune in which the FCC would be a highly reluctant defendant of rules its own chairman doesn't support. Martin is telling Tribune, "I'll deny your waivers unless you sue me." Wink, wink. Nudge, nudge.
This corrupt, backdoor method of gutting regulations is a specialty of the Bush administration. Here's how High Country News described the technique when applied to environmental protections:
The Bush administration has developed its own style of courtroom aikido -- a martial art that specializes in absorbing the energy of one's opponent. The administration encourages lawsuits from the logging companies, homebuilders, snowmobilers and off-road drivers, as well as property-rights proponents, all of which challenge the laws and regulations. Then it effectively surrenders, by making only weak defenses in court, or hurriedly agreeing to settlements that cave in to the challengers.
The same theory applies to the clear-cutting of local media.
Reading the fine print
The new Tribune waivers arrive as Martin is trying to lift the ban against one company owning both the daily paper and a TV or radio station in nearly every market. His strategy is the same in both efforts: Pretend you're presenting a modest compromise, while leaving massive loopholes in the fine print.
The flaws are there to see for anyone who bothers to look. As our report, "Devil in the Details," [PDF] makes clear, Martin's plan is corporate welfare for Big Media that would unleash more consolidation in any market among stations of any size. Moreover, the latest evidence shows that cross-ownership doesn't create more local news and won't solve the self-inflicted woes of the newspaper industry.
But Martin knows that most of the media won't bother to dig beneath the surface or cover this story outside of the business pages. The networks and cable news channels? Forget about it. Nobody wants to cover their bosses.
The corruption and collusion on display here is so cunning it's hard not to have some grudging admiration. Martin is trying to make it so complicated that no one but media lawyers will know what he's doing. He's set an arbitrary Dec. 18 deadline hoping that's too fast for the public to catch on or for Congress to catch up.
But it's not over yet. Tomorrow, the Senate Commerce Committee will vote on a bill -- the bipartisan Media Ownership Act (S. 2332) -- that would put the brakes on Martin's rush. On Wednesday, the entire FCC will go to Capitol Hill for an oversight hearing in the House [PDF]. They'll face the Senate a week later.
The public doesn't want more media consolidation. That's something that 99 percent of Americans -- judging by the millions of comments filed with the FCC since 2003 -- can agree on. With those kinds of numbers, it doesn't take a political genius to recognize a winning issue. But Congress won't act unless they hear from their constituents.
Four years ago, an unprecedented public outcry helped stop the FCC from pushing through these same rules. We can stop them again. But the time to act is now.