Re: FCC (was: Re: clear channel buys amfm)

[Garrett Wollman <wollman>]

<<On Wed, 6 Oct 1999 20:46:05 EDT, Dib9@aol.com said:

> legislative intent of the 1996 act was clear and the FCC would be pushing 
> their luck to go against clear legislative intent.  I'm sure any new limits 
> would also be challenged in court.

The grounds potentially available for mounting such a challenge would
be quite narrow.  Given that Congress clearly intended to allow the
FCC some discretion in the matter, else the clause I mentioned would
not have been included in the act, one could not argue that the FCC
would have exceed its authority.  (There's also the problem that most
of the legislative history centers around the telecommunications
titles of the act and not broadcasting.)  

The only other sort of challenge I can conceive of would be to suggest
that the entire regulatory regime is unconstitutional -- while there's
a good First Amendment argument to be made there, I suspect only two
Supremes would find it convincing (Thomas and Scalia).  Perhaps our
lawyerly friends on the list can point out other grounds.  

The First Amendment argument might also support the opposite
conclusion; i.e., that restrictions on station ownership are necessary
in order to ensure that access to the public's broadcast spectrum is
available to all speakers and not just a few large media companies.
The government can make content-neutral restrictions on other sorts of
speakers in order to assure fair and orderly access to public places
(what I believe is called in the jargon ``reasonable time and
place'').

It's by no means certain that the act as it passed in 1996 -- under
the strong 1994 Republican majority -- would pass today under narrower
majorities and different leadership.  If the FCC were to act as I
suggest, the slow wheels of administrative procedure would ensure that
it would not happen before the term of the current Congress runs out.
(At a minimum I would guess that it would take at least a year, by
which point it might be no longer relevant.)

-GAWollman

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