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A group of large media conglomerates wants the Supreme Court to take up the issue of how many media entities a company can own in any individual market. Six cases that present the issue have been brought by media giants, including the Tribune Co., NBC Universal, Viacom, Media General, the Sinclair Broadcast Group, and the Gannett Co., as well as the National Association of Broadcasters, and are set for review at the Court’s private conference on June 2. Yet despite the enormity of the issue, many Court-watchers believe the justices are unlikely to take up the cases. The bloc of media companies is challenging a set of proposed media ownership rules developed by the Federal Communications Commission in 2003. At the time, the Republican-led FCC voted along party lines to loosen some of its cross-ownership restrictions and revised rules concerning the number of radio and television stations that can be commonly owned in a particular market. While the large media companies favored the relaxed restrictions on cross-ownership in large and medium markets, they argued that the new rules didn’t go far enough toward deregulating the industry. In their briefs to the Court, the companies argue that the cross-ownership rules relating to newspaper and television station ownership unfairly limit newspaper owners while not subjecting owners of other media, such as cable television and the Internet, to the same restrictions � which, they say, violates the First Amendment. In addition, the companies say that the other proposed changes for ownership of television and radio stations further restrict the number of stations a company could own instead of moving toward congressionally mandated deregulation. Furthermore, broadcasters argue that regulations on the number of radio and television stations that a company can own violates the Telecommunications Act of 1996, which, according to a brief submitted by the National Association of Broadcasters, “eliminated or relaxed virtually all of these media ownership rules.” Under the proposed FCC rules as they now stand, the same company could own both the largest newspaper and the highest-rated television station in many major markets, but the FCC left some restrictions in place for small and midsize markets and for ownership of multiple television and radio stations in the same market. At the heart of the First Amendment argument, according to a brief submitted by Carter Phillips of Sidley Austin Brown & Wood, which represents a number of the petitioners, is the Supreme Court’s determination more than 35 years ago that “broadcast media were then uniquely important sources of information affected by ‘spectrum scarcity’ that justified regulation that would otherwise offend the First Amendment.” That rationale, the brief continues, “has long been superseded by dramatic technological and competitive developments that have increased the sources available to Americans.” Other legal luminaries involved as counsel of record in the case on behalf of petitioners include Christopher Landau of Kirkland & Ellis; Donald Verrilli Jr. of Jenner & Block; Richard Wiley of Wiley Rein & Fielding; and Kathryn Schmeltzer of Pillsbury Winthrop Shaw Pittman. Interestingly, the appeal to the Supreme Court comes even as the future of the FCC rules themselves is uncertain. A coalition of public interest groups and others who oppose greater media consolidation on the grounds that consolidation stifles a diversity of voices successfully petitioned the U.S. Court of Appeals for the 3rd Circuit in Philadelphia to stay the implementation of the rules in September of 2003. In June of 2004, the appeals court ultimately sent the new rules back to the FCC. A divided 3rd Circuit panel said that the commission had “not sufficiently justified its particular chosen numerical limits for local television ownership, local radio ownership, or cross-ownership of media within local markets.” The remand gives the FCC the option of proposing a completely new set of rules or further justifying the proposed rules for the appeals court. Which option the FCC will choose is now up to new FCC Chairman Kevin Martin. But the government, in consultation with the FCC, chose not to join in the appeal of the 3rd Circuit’s decision to the Supreme Court. A coalition of public interest organizations � including Fairness and Accuracy in Reporting, the Center for Digital Democracy, the Media Alliance, and the Consumer Federation of America � urges the Court not to get involved in the present cases, arguing that the 3rd Circuit decision to remand the proposed rules instead vacating them makes Supreme Court review of this decision premature. “Because many rules challenged by Petitioners are not expected to be retained on remand, review of those rules would likely be unnecessary,” says the brief from Andrew Schwartzman of the Media Access Project, the lead counsel for the respondents. “Further, all of the rules at issue in this case may be modified or repealed by the FCC during the next congressionally-mandated review of media ownership rules, which the FCC will conduct in 2006.” The Court, however, may choose not to hear these cases for a different reason: The government decided to sit out this fight. “Obviously we would be more enthusiastic about the chances if the government had stepped in,” says Phillips, the lawyer for the petitioners. “But is it fatal? No.” In spite of the government’s reluctance to step back into the fray, Phillips says the issues the media companies are arguing are serious and worthy of review. The high court could help the commission set the proper legal standard of judicial review for the FCC regulations, Phillips says, and, “at this stage the Court would do everyone a favor by drawing the line.” But those arguments may fall short under the weight and complexity of the filings, says Schwartzman. “This was a massive record and this is not the kind of case that the Court wants to dig into,” he says. There are several other cases in the pipeline, he says, that are “clean and adjudicable and are better suited for Supreme Court review.” Other Cases Up for Review May 26 ConferenceBubna v. Anchorage Equal Rights Commission, No. 04-1146. Ban on discrimination in housing rentals based on marital status. • United Heath Group Inc. v. Klay, No. 04-1298. Does stay of trial of arbitrable claims extend to non-arbitrable claims? June 2 ConferenceRose Acre Farms Inc. v. United States, No. 04-1149. Does destruction of hens for salmonella testing constitute a taking under the Fifth Amendment? • Long Island Care at Home Ltd. v Coke, No. 04-1315. Do federal minimum wage and overtime pay requirements apply to home health care aides? • Illinois Tool Works Inc. v. Independent Ink Inc., No. 04-1329. Must plaintiff prove as part of its antitrust case that defendant possessed market power in relevant market for tying product? This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Bethany Broida can be contacted at [email protected].

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