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A federal appeals court may beat Congress to the punch in ruling on the Federal Communications Commission’s controversial media ownership rules. As lawmakers return to Capitol Hill to debate the regulations, the 3rd U.S. Circuit Court of Appeals will hear arguments today. Specifically, the court will consider a motion filed by the Media Access Project, a Washington public interest law firm, requesting that the FCC delay implementing the media rules until a judicial panel considers a consolidated case that encompasses all challenges to the regulations. Many consumer groups and corporations have appealed the regulations, which generally loosen limits on TV, newspaper and radio company mergers. Ten challenges to the rewrite made in four federal appeals courts were consolidated to the 3rd U.S. Circuit Court of Appeals in Philadelphia, which on Aug. 19 won a lottery to consider the consolidated case. “In the court proceeding we are saying it is foolish to … allow the FCC to implement the rules while a motion to revert the entire proceeding is being considered here,” said MAP associate director Harold Feld. He expressed optimism that the court could approve the group’s motion in time to postpone the rules’ implementation, which is scheduled for Thursday. But Kelly Cameron, partner at Powell, Goldstein, Frazer & Murphy LLP in Washington, said the 3rd Circuit is unlikely to delay the regulations taking effect. Among other things, opponents of the rules would need to convince the court that adopting the regs would cause severe and immediate public harm. “When the rules take effect, we won’t see massive [media industry] consolidation,” Cameron said. “And so the court will see that there will be a low degree of harm.” At the proceeding MAP will have only 20 minutes to outline consumer concerns and the FCC will have 20 minutes to argue in favor. Legal counsel representing companies that favor even greater media ownership deregulation will be granted 15 minutes to make their case, followed by rebuttal from MAP legal counsel. Feld said the judicial panel’s random selection of the 3rd Circuit, rather than the D.C. appeals court, to review the media rules represents a small victory for opponents of media deregulation. “The jurisprudence at the D.C. Circuit has been hostile to the interests of citizens,” Feld said. He noted that the D.C. Circuit in February 2002 struck down two FCC ownership rules that consumer activists argue should have been preserved. The Philadelphia appeals court will not hear oral arguments on the consolidated case for at least six months. The FCC must first review corporate and consumer petitions for reconsideration at the agency before challenges can be reviewed in appellate court. Howard Liberman, partner at law firm Drinker Biddle & Reath LLP in Washington, said the FCC is unlikely to approve any reconsideration petitions. That could change if agency Chairman Michael Powell steps down and Commissioner Kevin Martin, who some observers have pegged to replace Powell, becomes the new chairman. “If that happens, some FCC petitions will actually be considered,” Liberman noted. Meanwhile, congressional opposition to the rules is expected to heat up as legislators return from the August break. House and Senate lawmakers have proposed a bill to overturn all or parts of the FCC’s initiative. The House in July attached language to a Commerce, Justice, State appropriations bill that would reinstate a 35 percent cap on the percentage of U.S. households any single owner of television stations may serve. The FCC in June raised the cap to 45 percent. Senate Appropriations Committee Chairman Ted Stevens, R-Alaska, is likely to attach a similar provision to Senate spending legislation. Congressional Republicans, who generally oppose rescinding the rules, will try to thwart restoration of the 35 percent cap when members of the House and Senate appropriations committees meet to work out a final spending bill sometime in September or October. Despite the threat of a White House veto, a growing number of lawmakers have attacked the rules. The issue is politically charged, and already Democratic presidential candidates Howard Dean and Sen. John Kerry, D-Mass., have argued publicly against the regulations. �Copyright 2003, The Deal, LLC. All rights reserved.

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