Radio Groups Tell FCC To Stay Out Of PPM Business
October 6, 2008 at 1:39 PM (PT)
Executives for nine major radio groups have sent a letter to FCC Secretary MARLENE H. DORTCH calling on the Commission to stay out of the PPM monitoring business. In their Reply Comments to the Emergency Petition for Section 403 Inquiry filed by the PPM COALITION, the radio group execs assert that the FCC has no jurisdiction to evaluate the PPM, nor can it rule on private contracts.
"Administrative agencies may regulate only pursuant to the authority delegated by Congress," they wrote. "The Communications Act authorizes the FCC to regulate interstate and foreign commerce in communication by wire and radio. However, the FCC has no jurisdiction over entities not engaged in "communication by wire or radio." ARBITRON’s audience measurement services do not engage in interstate and foreign commerce in communication by wire and radio. Thus, on the face of the statute, the FCC lacks authority to conduct the Section 403 inquiry requested by the PPM Coalition.
"The FCC has, in the past, acknowledged certain areas in which it has no power to intervene because it has not been granted authority over the subject matter by Congress. It should exercise similar restraint in this instance."
When it comes to ruling on private contracts, "Radio broadcasters independently determine whether or not to subscribe to ARBITRON’s services. Entities that decide to subscribe to Arbitron’s services, including audience measurement by PPM, voluntarily enter into private contractual agreements with ARBITRON. These agreements, like most arms length contracts negotiated between business entities, contain choice-of-law provisions, provisions allocating and/or limiting liability, and representations and warranties made by the parties as to their respective contractual obligations and responsibilities.
"The resolution of allegations of defects in the PPM measurement methodology are addressed in the contracts between ARBITRON and the PPM COALITION members, and Respondents respectfully submit that the FCC should not attempt to become an arbiter of these issues."
The Reply was signed by BONNEVILLE EVP DREW HOROWITZ, ENTERCOM COMMUNICATIONS EVP/Gen. Counsel JOHN C. DONLEVIE, BUCKLEY RADIO GROUP COO JOE BILOTTA, GREATER MEDIA VP/Gen. Counsel ELLEN RUBIN, CBS RADIO SVP/Gen. Counsel JO ANN HALLER, LINCOLN FINANCIAL MEDIA Pres./CEO ROBERT D. BENSON, CITADEL BROADCASTING VP/Gen. Counsel JACQUELYN ORR, MEGAMEDIA GROUP CEO ALEX SHVARTS and EMMIS COMMUNICATIONS Counsel JOHN FIORINI.
Read the entire Reply here.