The Prometheus Radio Project takes Big Media to court.
Working out of three dimly-lit rooms in the basement of a stone church in Philadelphia, a handful of young people in jeans are threatening to overturn a Federal Communications Commission decision backed by many of the country’s largest media companies.
It’s unlikely that executives at Fox, CBS and NBC or the country’s most prominent radio and newspaper chains had ever heard of the Prometheus Radio Project, a group of community radio advocates, until early September. That’s when a lawyer from the Media Access Project, a public interest law firm in Washington, D.C., successfully persuaded a federal appeals court in Philadelphia to issue a stay of new FCC rules that make it easier for media companies to buy other media outlets.
Having long since ended their days of operating a “pirate” radio station, the low-paid staffers of the Prometheus Radio Project now find themselves in the improbable position of being the lead petitioner in a lawsuit that could force FCC Chairman Michael Powell to abandon the new rules.
Because the Media Access Project cited Prometheus Radio in its petition to the Philadelphia court, the radio activists headline a potentially landmark case.
“Everyone is watching the court case, because in one motion, everything that the FCC approved could be completely wiped out,” said Blair Levin, a media analyst for Legg Mason Inc. and a former FCC chief of staff. Hundreds of briefs in the case are expected to be filed by the Oct. 21 deadline. Final briefs must be submitted by Dec. 16, with oral arguments tentatively scheduled for early January.
As was expected in June when the FCC issued the rule changes, some argued that the commission went too far while others said it hadn’t gone far enough. Since the rules cover so many areas of media ownership, some companies fall on both sides of the argument, depending on a particular point. Others plan to say the FCC got it just right.
While television networks applauded the FCC’s decision to increase to 45 percent from 35 percent the number of homes that can be reached by any one broadcaster, they are likely to ask the court to remove the restrictions altogether.
The same goes for much of the newspaper industry. Prior to the June vote, the FCC, except in a few cases, banned newspapers from buying television or radio stations in their markets. Under the new rules, that ban could be lifted for newspapers operating in markets with nine or more local television stations.
In its court filing, the Newspaper Association of America plans to argue that any cross-ownership restrictions are unconstitutional. (Tribune Co., owner of the Chicago Tribune, favors the removal of cross-ownership barriers. Tribune’s ownership of WGN-Ch. 9, WGN-AM 720 and the Chicago Tribune predated any such restrictions.)
Shortly after the new rules were published in early July, groups of local television affiliates, the national networks, minority broadcasters and public interest lawyers each filed lawsuits in four separate federal appeals courts, including the District of Columbia, challenging various aspects of the rules.
To streamline the process, the four lawsuits were combined, and through a lottery, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia was selected to hear the case.
“Yeah, it’s exciting,” said Prometheus’ Pete Tridish, who still uses the pseudonym taken when he helped set up a small but illegal radio station six years ago in a West Philadelphia apartment. “We’ve always tried to draw attention to the dangers to a democracy of having a single company own the largest media outlets in a single market.”
San Antonio-based Clear Channel Communications Inc., which owns more than 1,200 radio stations or about 9 percent of all U.S. radio outlets, is one large media company that has made no excuses for its many acquisitions. Andy Levin, a Clear Channel lobbyist based in Washington, D.C., charges that Media Access Project and Prometheus overstate radio concentration. The new FCC rules, he says, would actually make it harder for radio station owners to acquire new stations in the same market.
“We think the court ruling is ironic, because radio is the least concentrated of all media,” Levin said.
While Congress has expressed its disapproval of parts of the FCC’s new rules, it remains unclear whether both the House and Senate will vote on or even debate the entire package.
For that reason, the last, best hope for opponents of the FCC’s new rules may be to persuade a panel of three judges at the 3rd Circuit to reverse or even throw out the new rules. Conversely, the panel could affirm part or all of the FCC’s rule changes, or send them back to the FCC for more work.
“I don’t think any court has substantially dealt with all of these issues before,” said Andy Schwartzman of the Media Access Project, who argued the case before the Philadelphia court.
Tridish’s leap into the battle for the airwaves came in 1997 when he joined with a group of friends and local activists to purchase a 20-watt radio transmitter. Calling themselves Radio Mutiny, the station’s ever-changing and expanding list of on-air programmers wanted to have some fun but also wanted to point out that it had been more than 20 years since the FCC had issued a license to operate a radio station of less than 100 watts.
During its year-and-half of operation, the station amassed a loyal listenership among the varied neighborhoods surrounding the University of Pennsylvania. But being a “pirate” station, it also attracted the enforcement arm of the FCC. One evening in the summer of 1998, Radio Mutiny was shut down.
“The FCC guys came to our place with a cop and a warrant and took away our transmitter,” recalled Tridish, 33, who grew up as Dylan Wrynn and graduated from Antioch College in Ohio. His pseudonym was inspired by the petri dish. “But they had a sense of humor about it–they announced to everyone listening that this was the end of Radio Mutiny.”
While some at the pirate station wanted to rebuild, Tridish and a few others took the suggestion of lawyers from the Media Access Project that they become advocates for low-power community radio. Rather than continue to endure the stressful demands of running from the law, Tridish helped form Prometheus, adopting the name of the Greek god who empowered the human race through a number of gifts, including fire.
“There was a realization that community radio shouldn’t just be for the reckless,” he said. “Plus, we were done with hiding.”
Soon after forming, Prometheus obtained a $20,000 grant from the New York-based List Foundation, and with help from Media Access Project, received $50,000 earlier this year from the Ford Foundation. It’s enough, Tridish said, to pay himself and two others $250 a week, purchase office supplies and rent space from Calvary United Methodist Church.
Prometheus’ early efforts helped persuade the FCC under former President Bill Clinton to loosen the allocation of radio licenses for stations under 100 watts. However, because large urban-based radio stations still take up most room on the dial, only low-power stations in rural areas have been able to receive new licenses.
As a result, Tridish and a collective of engineers and carpenters regularly hold radio “barn-raisings,” three- or four-day gatherings in which they build an entire under-100-watt station. They recently returned from a trip to Opelousas, La.
Over the spring, when it became clear that FCC Chairman Powell and the two other Republicans on the commission’s five-member board would remove many restrictions on media ownership, Schwartzman of Media Access Project began talking with Tridish about formally petitioning the federal court. “We thought it would be great to have the case here in Philadelphia and out of Washington, D.C.” Tridish said. “Far too much federal policy is made in D.C.”
When he appeared before the Philadelphia court last month, Schwartzman pressed Prometheus’ basic message, arguing that the FCC’s new ownership rules would impede “diversely owned and operated broadcasting stations.”
The court’s stay shocked the FCC and the many media corporations that had lobbied since the mid-1970s to remove ownership restrictions. Until the 3rd Circuit makes its ruling, any plans that media companies might have had to acquire new media outlets must remain on hold. Not surprisingly, observers say the court has adopted an unusually accelerated timetable for this case.
Sitting on a beat-up couch at Prometheus’ headquarters, Tridish emphasized that television, radio, newspapers and the Internet must be looked at as a whole. “Ownership matters,” he said. “If you don’t have varied owners, everything ends up sounding the same.”
FCC ownership rules
– National TV concentration: Raised to 45 percent from 35 percent the limit on total U.S. TV households that a single owner of TV stations may reach.
– Cross-ownership: Changed restrictions preventing a company from owning both a newspaper and TV station in one market and limited cross-ownership of radio and TV stations. In markets with nine or more TV stations, restrictions were lifted. Markets with four to eight TV stations still have some restrictions, and cross-ownership is banned in markets with three or fewer TV stations.
– Local radio concentration: Changed how local radio markets are defined to correct a loophole that has allowed companies to exceed ownership limits in some areas.
– Local TV multiple ownership: Changed a rule to allow a company to own two TV stations in a market if the market has five or more stations or, in a market with 18 or more TV stations, to own three. In both cases only one of the stations may be in the top four in ratings.
– Dual TV network ban: Retained a rule prohibiting a company from owning more than one of the four main TV networks.