Sinclair petitions high court on media ownership ruling
Appeals judges barred FCC from easing limits on same-market outlets; Conflict with D.C. decision argued
By Andrea K. Walker, Baltimore Sun
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Sinclair Broadcast Group Inc. petitioned the U.S. Supreme Court yesterday to review a lower court's ruling that blocked the Federal Communications Commission from relaxing restrictions on how many media outlets a company can own in one market.
The Hunt Valley company, which owns or operates 62 stations that reach nearly a quarter of the nation's households, joins about a half-dozen other broadcast companies - including Media General Inc. and Tribune Co., owner of The Sun - that have asked the nation's highest court to reverse the decision of a lower appeals court.
In June, judges on the 3rd U.S. Circuit Court of Appeals threw out FCC rules that would have eased restrictions on media ownership. The regulations would have allowed companies to own a maximum of three television stations in a market instead of two, and two stations instead of one in midsize markets. It also would have allowed a company to own a newspaper and a television station in the same market.
Sinclair's petition challenges the appeals court decision on three points, including whether it limits free-speech rights of television stations by enforcing ownership restrictions that don't apply to cable companies, satellite operators and Internet providers.
Sinclair has been perhaps the most aggressive broadcaster on pushing the bounds of ownership rules. In the 1990s, using a regulatory mechanism called a "local market arrangement," which was drafted to help ailing or startup stations, Sinclair obtained rights to operate numerous stations in cities where it owned one station.
In 2001, after ownership rules were first relaxed in the late 1990s, the FCC allowed Sinclair to buy a number of the stations it managed while fining the company $40,000 for rules violations.
The agency continues to look into whether Sinclair should be allowed to buy five other stations it manages, including WNUV in Baltimore, from Cunningham Broadcasting Corp. Cunningham is partly owned by the mother of Sinclair Chief Executive Officer David Smith.
Sinclair said in its petition to the Supreme Court that the judges from the 3rd Circuit contradicted decisions made by the federal appeals court for the District of Columbia. The 3rd Circuit ordered the FCC to continue enforcing the "eight-voices test," which prohibits companies from owning more than one station in a market unless there are eight other independently owned full-power television stations in that market.
Justify or end it
In 2002, the D.C. court ordered the FCC to justify the eight-voice rule or eliminate it. The agency eventually did the latter.
"The D.C. court effectively said, 'Justify or get rid of the eight-voices test,'" said Barry Faber, Sinclair's vice president and general counsel. "The FCC said, 'We can't justify it so we're going to get rid of it.' That 3rd Circuit is in direct contradiction to what the D.C. Circuit said to them. In our view, they inappropriately overruled the FCC."
Tribune agreed with Sinclair's stance.
"Sinclair is correct," Shaun Sheehan, vice president of Washington affairs for Tribune Broadcasting, said in an e-mail. "The 3rd Circuit is very much at odds with D.C. Circuit decisions. The Supreme Court needs to sort it out and add clarity. "
Media interest groups critical of more-lenient rules said Sinclair's arguments aren't justified.
"I think their efforts are immature," said Andrew Jay Schwartzman, president and chief executive officer of Media Access Project, a public interest group.
Most legal experts and the broadcasters asking for the highest court's review say the chances that the court will review the case are slim because the Bush administration didn't ask the court to look at it. U.S. Solicitor General Paul D. Clement and the FCC declined to file petitions in January.
Sheehan said there is a 20 percent to 30 percent chance that the high court will review the case.
Fewer than 10 percent of petitions are heard by the Supreme Court, Schwartzman said. Of the petitions filed by the government, more than half are heard.
"The rule of thumb is if nobody in the government asked them to take it, they don't," said Mark Cooper, director of research for the Consumer Federation of America.
Criticism of Sinclair heightened just before last year's presidential election when it announced plans to air a documentary critical of Democratic candidate John Kerry's service record in Vietnam and his later protests of the war.
In the spring, the company ordered its stations not to air an installment of ABC's Nightline that listed the names of U.S. troops killed in Iraq.
Licenses 'misused'
"We think there is powerful justification in placing limits on the number of stations a company can own in a market," Schwartzman said. "Sinclair has misused its broadcast licenses and it has more power than one company should have in a market."
If its efforts in the Supreme Court are futile, Sinclair said, it expects to have other chances to argue its case in court. Faber, its general counsel, predicts that the FCC will turn down its petition to buy the five stations from Cunningham. He said the company would then appeal to the Circuit Court in Washington, which the company feels has sided with it in the past.
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