Hollywood notified Chicago’s U.S. 7th Circuit Court of Appeals yesterday it will appeal Judge Richard Posner’s decision not to remove himself from the ongoing fin-syn fight.The longshot appeal, which may be filed as early as today, is expected to take the form of a request to Posner that he allow a three-judge panel to decide whether he remains on the case. If the motion is granted, the three judges deciding the case would be Posner, Chief Judge William Bauer and Judge Thomas Fairchild–the same panel that last month rejected as “unreasoned and unreasonable” last year’s Federal Communications Commission revisions to 20-year-old financial interest and syndication rules. If the motion is denied, an appeal from Hollywood to the U.S. Supreme Court is also possible. Posner has come under fire from Hollywood, independent broadcasters and other pro-fin-syn forces who cite an alleged pro-network bias on the part of the judge. The main point of controversy stems from an affidavit Posner wrote in 1977 on behalf of CBS. At the time, Posner was a law professor at the U. of Chicago. In the affidavit, he urged a federal judge in Los Angeles to reject fin-syn-related antitrust consent decrees proposed by the U.S. Dept. of Justice against NBC. Hollywood’s appeal came following Monday’s decision by Posner not to recuse himself from the case. In an eight-page opinion, Judge Posner called the recusal request “untimely,” and noted that Hollywood attorneys knew he had worked for CBS weeks before the Chicago court issued its decision nixing the fin-syn rules, and yet acted only after the ruling was released. ‘Too late’ “That was too late,” wrote Posner. “Litigants cannot take the heads-I-win-tails-you-lose position of waiting to see whether they win and if they lose moving to disqualify a judge who voted against them.” Later, Posner wrote: “Would a reasonable person suppose that gratitude to a network (CBS) for asking me to file an affidavit 15 years ago, or dogmatic adherence to statements made in that affidavit and long forgotten, would prevent me from judging impartially in a much different kind of case though one with undoubted thematic affinities to the case in which I filed my affidavit? I believe not.” Posner’s decision delighted network exex. Rick Cotton, general counsel for NBC, said, “A few weeks ago the federal appeals court found the FCC had totally failed to justify the outmoded, anachronistic and anticompetitive fin-syn rules; now it has thrown out Hollywood’s attempts to delay judicial action and divert attention from their anticompetitive efforts.” Cotton said the webs have “moved one step closer to allowing U.S. broadcast networks to compete equally against cable and foreign-owned Hollywood studios.” ABC lawyer David Westin said he is not surprised Hollywood attempted to remove Posner. “Desperate people pursue desperate means,” he said. Posner’s decision to remain on the case now leaves the possibility that the Chicago court could rule as early as today on whether there will be any fin-syn rules in place while the FCC comes up with new regulations.
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