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Chances are increasing that the Supreme Court will have to settle a long-running battle over regulations governing media industry consolidation. Acting U.S. Solicitor General Paul D. Clement recently asked the Supreme Court for an additional 30 days to decide whether to appeal a decision voiding looser Federal Communications Commission limits on mergers among television, radio and newspaper companies. The justices granted the request Nov. 23. Experts had not expected the Bush administration to seek Supreme Court review. But Clement’s request for more time suggests a move to seek appellate review. “This confirms that the solicitor general is leaning toward filing a challenge” to the ruling invalidating the FCC rules, said Andrew Lipman, a partner at law firm Swidler Berlin Shereff Friedman in Washington. The National Association of Broadcasters, Sinclair Broadcast Group Inc., Tribune Co. and Media General Inc. joined the request by the solicitor general, who represents federal agencies in appeals to the Supreme Court. The justices gave the government until Jan. 3 to file. In dispute is the FCC’s June 2003 rewrite of media merger regulations. The agency eased restrictions on deals by agreeing to let a company own a maximum of three TV stations in large markets, such as New York or Los Angeles, instead of two. It also permitted some companies to own two TV stations, instead of one, in midsize markets. In addition, a company may own a newspaper and broadcaster in the same market. But in June the federal appeals court in Philadelphia stayed the rules, arguing that the FCC had failed to justify the changes. It ordered the agency to reconsider the regulations and it barred them from taking effect. Lipman said the Supreme Court normally approves requests by the solicitor general for more time to file appeals. The justices also typically accept such appeals. “It’s more likely than not that the Supreme Court will get a challenge from the solicitor general,” Lipman said. The solicitor general will likely wait until close to the deadline before deciding to challenge the lower court ruling, one observer said. The justices are then expected to take months to decide whether to hear the appeal. Andrew Schwartzman, president of Media Access Project, a Washington-based public interest law firm that challenged the FCC rules, dismissed assertions that the request for more time indicates the solicitor general will seek review of the lower court ruling. “The U.S. solicitor general routinely asks for extensions to consider cases of such magnitude, he said. “Everybody is blowing this way out of proportion. This is a tempest in a teapot.” Copyright �2004 TDD, LLC. All rights reserved.

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