APPEALS COURT URGED NOT TO STAY BROADCAST OWNERSHIP CAP
Viacom’s attempt to avoid complying with 35% national broadcast ownership cap shouldn’t be allowed by court because it’s procedurally flawed and because court isn’t likely to overturn cap, FCC and Network Affiliated Stations Alliance (NASA) said in separate briefs. Viacom is asking U.S. Appeals Court, D.C., to stay ownership cap, citing court decision voiding 30% national cable ownership cap. Stay would prevent Viacom from having to divest stations by May 4.
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Stay exceeds court’s jurisdiction because Viacom didn’t file timely appeal of original agreement with FCC allowing merger of CBS and Viacom, FCC said, and stay request shouldn’t be considered as part of Viacom’s overall challenge of ownership cap. There has been “no change in facts or law that would warrant relieving Viacom from the conditions” of merger agreement, FCC said.
NASA, which is opposing overall review of ownership cap, said even if court reviewed FCC decision in biennial regulatory review upholding ownership cap, it wouldn’t actually invalidate it. Group said court at most would remand decision for further action. It said harm to public interest in granting Viacom stay “would be considerable” since Congress itself determined that 35% cap served public interest. Voiding cable cap doesn’t necessarily mean broadcast cap will fall because broadcast cap was set specifically by Congress, NASA said.
Viacom “is seeking relief from a situation of its own making,” NASA brief said, since it agreed to comply with ownership cap as part of merger settlement: “Viacom entered into the CBS transaction with full awareness of the 35% broadcast cap, and fully expecting that the cap would apply to the transaction.” It also said Viacom “faces no real emergency” since it has known since May 3 that divestiture must occur.