FCC likely to call for judge ouster

A divided Federal Communications Commission is expected to recommend that a Chicago federal appeals court judge disqualify himself from the fight over financial interest and syndication rules.

FCC sources said commissioners Andrew Barrett, Ervin Duggan and Sherrie Marshall are likely to support the removal of Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals from the case. FCC chairman Alfred Sikes and commissioner James Quello will dissent from the majority decision, per sources.

Sources indicated Duggan and Marshall had already signed off on the decision, and that Barrett– who’s out of the country–was expected to join them.

Decision by the FCC comes one day after Hollywood’s fin-syn coalition and independent broadcasters asked Posner to step down. The fin-syn forces cited Posner’s prior work as a consultant for CBS as grounds for his recusal.

The 3-2 decision mirrors an identical decision reached last year by the FCC, when the agency relaxed 20-year-old rules that barred the TV networks from taking an ownership interest in or syndication profits from non-web produced programs. Sikes and Quello argued that the rules should be eliminated in their entirety.

Two weeks ago, Posner wrote a 3-0 opinion tossing out the rules. However, he gave interested parties until today to file comments on how to proceed with the case.

The FCC majority of Barrett, Duggan and Marshall, along with Hollywood’s fin-syn coalition, is expected to ask that the 1991 rules be retained until the commission can craft regs that better satisfy the court.

Meanwhile, the TV networks–along with Sikes and Quello–will ask that there be no fin-syn rules during the interim when the FCC is drafting new regulations. Fox Broadcasting supports the Big Three networks’ request (story, page 31).

Parties to the case have until Monday to explain to the Chi court why Posner should or should not remain. Yesterday, an attorney for indie station group owner Chris-Craft said his group would also seek Posner’s ouster.

If Posner recuses himself, it’s unclear whether the Chi court would retry the matter, or whether the case would simply become a 2-0 decision. There has been speculation that Hollywood will seek to have a new three-judge panel hear the case.

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