Lawyers for the TV networks claimed yesterday they had no knowledge that a federal judge deciding the fate of Federal Communications Commission fin-syn rules once performed legal work for CBS in a related case.
The impartiality of Judge Richard A. Posner of Chicago’s U.S. 7th Circuit Court of Appeals has come under question following the disclosure in yesterday’s Daily Variety that Posner–while serving as a professor of law at the U. of Chicago–filed a legal affadavit on behalf of the Eye web.
In the affadavit, Posner argued against the adoption of fin-syn-related antitrust consent decrees eventually enforced against the Big Three networks.
When asked to comment on Posner’s CBS work, NBC general counsel Rick Cotton said yesterday that “I know nothing about this. It’s certainly the first I’ve heard about it.”
Louis Cohen, who earlier this month argued the network’s case for getting rid of the fin-syn rules before the Chicago court, also claimed not to know of Posner’s past work for CBS. “I don’t know what the facts are,” said Cohen. “I have no reason to question Judge Posner’s capacity to judge this case fairly and professionally.”
Posner’s decision not to remove himself from the fin-syn case is raising eyebrows in some legal circles. Yale U. law professor Geoffrey Hazard said yesterday that “without knowing all the facts of this particular case, the argument could be made that his (Posner’s) impartiality could reasonably be questioned.”
Posner’s affadavit on behalf of CBS was filed in federal court in Los Angeles in 1977. At the time, NBC had been charged by the U.S. Dept. of Justice with violating antitrust laws by extracting fin-syn profits from programmers.
To settle the suit, NBC had agreed to accept a consent decree drawn up by Justice in which the web agreed to accept fin-syn related restrictions in the program production arena. In his CBS affadavit, Posner said the consent decrees were “inconsistent with the public interest.”
One of three
Posner is now one of three judges deciding whether revisions made to the fin-syn rules last year by the FCC will stand. During oral arguments before the Chicago court earlier this month, Posner dominated the questioning and seemed highly skeptical of the need to continue the regs.
Sources speculated yesterday that Posner may not have removed himself from the case because the 1977 affadavit was filed in a case involving antitrust law, while the court case involves FCC regulations. However, most observers view the two cases as strongly linked.