An aide to California Gov. Pete Wilson has leveled sharp criticism at a Chicago court’s decision tossing out new Federal Communications Commission financial interest and syndication rules.
Ira Goldman, Wilson’s entertainment industry liaison, called the 3-0 decision written by Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals “judicial activism at its worst.”
The Wilson aide was especially incensed by Posner’s claim that “it has long been understood that (a) monopoly in broadcasting could actually promote rather than retard programming diversity.”
Goldman said, “The notion that a monopoly would provide greater viewer choice than a competitive marketplace is absurd. It’s the type of approach that would be taken by an economic psychopath.”
Posner is a conservative, free-market jurist whose role in the fin-syn decision has come under scrutiny. While serving as a law professor at the U. of Chicago in 1977, Posner was hired by CBS to write an affidavit urging a Los Angeles court not to adopt fin-syn-related antitrust consent decrees enforced against the networks.
Goldman declined to comment on whether Posner should have removed himself from the case.
Posner’s decision is viewed as a major breakthrough for the networks, which have been fighting for more than a decade to eliminate regs they claim have outlived their usefulness.
NBC attorney Rick Cotton, though warning that the case “is not over,” said that “what I take from the decision is a sense that these rules should have been repealed 10 years ago. The notion that government policy should protect foreign-owned Hollywood studios from competition has been indefensible for a long time.”
In its decision, the Chicago court gave interested parties 15 days to submit arguments on how the case should proceed.
Sources are speculating that there are three options presented for the Chicago court: A return to the old rules that date from 1970–a scenario that seems highly unlikely; no rules at all; or a delay in the case to allow the FCC to refine its argument for new regs.
The latter scenario seems most likely. Diane Killory, a lawyer for Hollywood’s fin-syn coalition, expressed optimism that her side will ultimately prevail.
“This is just one stage of the battle,” she said. “We lost this round, but we’re confident the FCC on remand will provide an explanation that will satisfy the court’s concerns.”