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Media companies seeking to make acquisitions must wait longer to learn if they have a shot at restoring a Federal Communications Commission policy allowing more consolidation in the broadcasting industry. Observers had expected acting U.S. Solicitor General Paul Clement to decide Monday whether to ask the Supreme Court to reinstate the FCC rules. Over the December holidays, however, Clement received a four-week extension until Jan. 31 to decide whether to appeal. This was the second extension that the Supreme Court gave the solicitor general. Obtaining more than one extension is unusual, though not unprecedented. In dispute is the Federal Communications Commission’s June 2003 rewrite of media merger regulations. The agency relaxed 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, and in some cases to own two TV stations, instead of one, in midsize markets. In addition, a company was freed to own a newspaper and broadcaster in the same market. Consumer activists, backed by smaller and independent media concerns, challenged the rules and won. A federal appeals court in Philadelphia ruled in June 2004 that the FCC had failed to justify its overhaul of the media regulations. It ordered the agency to reconsider the rules, which were stayed. The deadline to appeal the ruling to the Supreme Court was originally set for Dec. 3. But the latest extension to the case eliminates any chance that it could be argued in late winter and decided before the court adjourns at the end of June, said Harold Feld, associate director of Media Access Project, a Washington-based public interest law firm that challenged the FCC rules. Instead, the justices are likely to delay arguments until the fall and issue a decision early next year. “Since this raises complicated questions, you are not likely to see a decision until 2006,” Feld said. Experts warned against assuming that the solicitor general’s request for another extension indicates that the government will file the appeal. “The decision by Clement to ask for another extension was probably made because the deadline meant a lot of work had to be done during the holiday period near the end of the year and there were a lack of decision makers in town to coordinate,” said Andrew Lipman, a media and telecom partner at law firm Swidler Berlin LLP in Washington. Still, the Supreme Court is likely to accept reviewing the case. “When all is said and done, the solicitor will appeal the 3rd Circuit case,” Lipman said. Clement will likely wait until close to the deadline before deciding to challenge the lower court ruling, Lipman said. The justices are then expected to take months to decide whether to hear the appeal. The National Association of Broadcasters and media companies Sinclair Broadcast Group Inc., Tribune Co. and Media General Inc. already have asked the Supreme Court to take the case. Sources said the justices are far more likely to hear the case if the solicitor general joins the appeal. Copyright �2005 TDD, LLC. All rights reserved.

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