Jury out on fin-syn judge

A TV production trade group has joined the chorus of demands for a judge to be removed from the fin-syn case in Chicago.

In comments to be filed today with the federal appeals court in Chicago, the Program Producers & Distributors Committee will say that it supports the Hollywood fin-syn coalition’s recommendation that Judge Richard A. Posner disqualify himself from the case.

Posner, who penned a 3-0 opinion Nov. 5 tossing out Federal Communications Commission revisions to the financial interest and syndication rules, is in the spotlight because of his work on behalf of CBS in a case related to the rules prior to becoming a judge.

Meanwhile, the FCC Friday said as expected that it would also support Posner’s removal from the case. Also expected to seek Posner’s ouster are Tribune Broadcasting and Chris-Craft.

Additionally, parties in that case filed comments Friday with the Chicago court on whether interim rules should remain in place while the FCC comes up with new rules.

At issue is whether the court will create a fin-syn-free environment for the TV networks while the FCC works to justify new rules the court might find acceptable.

As expected, the FCC officially endorsed a call for retention of the 1991 rules while it works to craft new regulations. However, two of the five FCC members–chairman Al Sikes and commissioner James Quello–dissented from the majority decision by commissioners Andrew Barrett, Sherrie Marshall and Ervin Duggan.

The divided FCC opinion came as no surprise, since Sikes and Quello voted against adoption of the new revised rules last year. Pro-fin-syn forces also urged the court to leave the 1991 rules in place, and suggested that the FCC be given a year to craft new regs.

It would be “contrary to established law” to operate in a fin-syn-free environment when the expert agency–the FCC–rejected the network demand for total repeal of the rules, Hollywood’s fin-syn coalition argued.

The networks argued for no rules in the interim, saying that “unless and until the fin-syn restrictions can be justified, the networks are entitled to compete in these markets.”

In his dissent, Quello wrote that while he does not object to reopening a proceeding to examine fin-syn issues, “there is little to be gained by starting with rules that are unsupported by fact or logic.”

Another dissent by Quello called the motion to dismiss Posner “a belated and obvious effort to avoid an adverse result.”

Sikes concurred.

Posner was hired by CBS in 1977 while he was a U. of Chicago law professor to write an affidavit urging a Los Angeles court to reject fin-syn-related antitrust consent decrees against NBC.

Network attorneys maintain that the antitrust case and the fin-syn rules involve separate matters.

However, PPDC notes in today’s filing that the U.S. Dept. of Justice–which last week urged the L.A. court to lift those consent decrees–“relies extensively” upon Posner’s Nov. 5 decision in the FCC case to support its case.

“In essence … Judge Posner as judge is passing judgment on essentially the same matter in controversy on which Professor Posner opined as a paid expert witness (for CBS),” says PPDC.

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