Along with questions about privacyand freedom of the press, the News of the World hacking scandal that engulfed Rupert Murdoch’s sprawling media empire this summer also brought concerns about media consolidation into the mainstream spotlight. On July 7, just days after the hacking news broke, the 3rd Circuit published an opinion that, for now, allays fears that a rule proposed by the Federal Communications Commission (FCC) in 2008 may have allowed for greater media consolidation.
The FCC’s 2008 Media Ownership Order set aside an all-out ban on newspaper/broadcast cross-ownership, instead adopting a test to consider merger proposals on a case-by-case basis. While the 3rd Circuit didn’t address the merits of the new Newspaper-Broadcast Cross-Ownership (NBCO) rule, it tossed out the approach on notice grounds. It’s a blow for broadcast and newspaper interests, which had petitioned for a stronger relaxation of the ban, and at least a temporary triumph for public interest groups that had been fighting the rule change.
In July 2006, the commission published a Final Notice of Proposed Rulemaking (FNPR) seeking comments on how to address the 3rd Circuit’s remand in Prometheus I. The FCC relied on two sentences asking about ownership limits in local markets as adequate notice of the NBCO rule. Commenters complained that the lack of proposals and suggestions in the FNPR would limit their submissions.
And the FNPR wasn’t the only instance of inadequate notice the 3rd Circuit flagged. The FCC released 10 economic studies in July 2007 on media ownership and allowed 60 days for comments. In November 2007, then-FCC Chairman Kevin Martin unveiled his proposal for a new NBCO rule in a New York Times Op-Ed and simultaneous press release. He set a 28-day comment period instead of the usual 90 days.