A Chicago judge whose impartiality in the fin-syn fight has been questioned by Hollywood’s fin-syn coalition and the Federal Communications Commission has rejected a call for his dismissal from the case.
The FCC was notified late yesterday that Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals decided he will not recuse himself from the case. The text of Posner’s eight-page opinion was not expected to be released until today.
Posner’s decision, though not unexpected, is nevertheless remarkable for the speed with which it was delivered. Parties to the case had until 3 p.m. yesterday to comment on whether he should remain; thus, Posner handed down the decision within hours of receiving final comments.
The judge’s decision will bring joy to the TV networks and Fox Broadcasting, which yesterday had urged him to remain on the case.
Attorneys for the nets and for Hollywood production declined comment on Posner’s decision, and it is unclear whether the pro-fin-syn forces will pursue further legal action to remove Posner.
On Nov. 5, Posner penned a 3-0 decision rejecting FCC revisions to the longstanding financial interest and syndication rules as “unreasoned and unreasonable.”
The judge’s objectivity has been questioned, however, for not disclosing that as a U. of Chicago law professor in 1977, he wrote an affadavit on behalf of CBS arguing against fin-syn-related antitrust consent decrees.
Hollywood’s fin-syn coalition last week urged Posner to step down from the case, claiming his role has been tainted by the appearance of a conflict of interest.
Two leading law professors in the field of judicial ethics signed on to the Hollywood request, as did the FCC, independent broadcasters and other organizations.
Yesterday, the networks and Fox defended Posner’s ability to serve impartially, and suggested that fin-syn advocates will stop at nothing to preserve the regs.
In its filing, Fox said the Chi court has been “provided … with an opportunity to gauge the desperation of the production community which, having been successful for many years in politically delaying any final action on the rules, now is reeling from the outcome of the court’s examination of the issue on its merits.”
‘Basis to bully’
Fox said that “with neither the facts nor the law on their side, (fin-syn supporters) have in effect used an allegation of impropriety … as a basis to bully a judge who authored an opinion adverse to them. The integrity of the judicial process must be preserved from this blatant misrepresentation.”
NBC claimed Posner should not have stepped down simply because of his work for CBS.
ABC and CBS zeroed in on the fact that Hollywood knew of Posner’s past work for CBS, but waited until after he released his opinion gutting the FCC rules before challenging the judge.
Posner decision backed
CBS noted that two other judges join with Posner in his decision. “There is no suggestion that the two other members of the panel would not decide the case the same way and approve the opinion as issued,” the web stated.
Also filing comments in the Chi court yesterday were Tribune Broadcasting and Chris-Craft Television.