- The Washington Times - Monday, September 8, 2003

Last week, the Senate Appropriations Committee voted down the Federal Communications Commission’s new rules loosening media-ownership restrictions. This came a day after the U.S. 3rd Circuit Court of Appeals issued an emergency stay preventing the new rules from going into effect — one day prior to their scheduled commencement. Without intervention from the courts, the broadcast market share that media companies can own would have increased from 35 percent to 45 percent, and regulations against cross ownership of broadcast and print outlets would have been lifted. The ruling is a prime example of judicial activism that is out of control.

In this instance, it cannot even be argued that the court’s decision was ill-considered, because the judges admit in their order that they have not yet even considered the case. The decision states, “It is difficult to predict the likelihood of success on the merits at this stage of the proceedings,” and then goes on to halt the rules without even considering the merits or a timeline for when it might do so. In effect, the unelected judicial branch is taking for itself the power to stop executive-branch policies without providing a justification. Unlike Congress, which through the Congressional Review Act gave itself 30 days to consider such decisions by presidential agencies, the 3rd Circuit generously bestowed on itself an unlimited delaying period.

What makes the court’s action especially difficult to accept is the arbitrary nature in which it was done. The court gives its opinion that the status quo is fine and will continue to be fine until it can get around to considering the merits of the media-ownership case. The decision does list four standards that could be considered, but then does not proceed to apply these standards. The first standard is consideration of the likelihood of success on the merits, a subject on which the judges punt. The second is proof of “irreparable harm” if the stay request is denied, which the court mentions but does not examine further. The third standard is “whether third parties will be harmed” if the new rules take effect, which ignores the harm that is done to companies whose profitability, growth and, thus, viability are limited by the stay. The fourth is “whether granting the stay will serve the public interest,” which, again, the court does not bother to argue either way.

A federal stay on major FCC rulings is not uncommon, but in this case, the court does not offer a compelling reason for such a drastic intervention — which is the usual practice. Congress and the president currently are battling out the issue. We do not think Congress should kill the new FCC rules. However, if it does, the president has the option to veto the legislation — which the White House has threatened to do. Congress may then override. Whichever position has the most support wins; that is the way the system works. The balance of powers essential to our limited form of government depends on the ability of the various branches to counter the action of the others. In recent decades, only the judiciary has taken the position that its say is final. The 3rd Circuit’s stay of the new FCC rules — for an undefined time and for an undefined reason — is the latest evidence of an unelected judiciary that needs to be reined in.

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