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Abercrombie's questions in TV merger rejected


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POSTED: Friday, November 20, 2009

The Federal Communications Commission has notified U.S. Rep. Neil Abercrombie that his Oct. 16 letter to Chairman Julius Genachowski will not be considered in the commission's review of the shared services agreement between KGMB-TV, KHNL-TV and KFVE-TV.

Attorney John Griffith Johnson Jr., representing HITV License Subsidiary Inc., a unit of MCG Capital Corp. and the KFVE licensee, wrote to the FCC on Nov. 9 that Abercrombie's letter was a “;possible violation”; of rules governing communication with the commission.

HITV suggests that Media Council Hawaii, which opposes the agreement, influenced Abercrombie to write the letter, which would have to be disclosed under FCC rules.

To bolster its argument, the HITV letter cited “;TheBuzz”; column of Nov. 5, which reported that Abercrombie and the Big Island Press Club had joined Media Council Hawaii in opposing the agreement. The column did not indicate that Abercrombie or the club had received encouragement from the Media Council to write letters.

Abercrombie's letter called on the FCC to carefully review the stations' merged operations, expressed concerns about the loss of editorial diversity for the Hawaii market and described the agreement as a possible violation of FCC ownership rules. He implored the commission to review the joint operating plan and “;respond with your findings.”;

The FCC deemed Abercrombie's letter as an ex parte communication in a “;restricted proceeding,”; since he had not served Raycom Media Inc., HITV License Subsidiary Inc. or Media Council with copies of his letter.

Here's the thing: As a member of Congress, Abercrombie is exempt from ex parte rules, as are viewers and/or listeners of the broadcasters involved in matters before the FCC.

Dave Helfert, Abercrombie's communications director, said the congressman was not encouraged by Media Council Hawaii to write his letter. “;I can assure you, it did not take anybody”; to prompt the letter. Abercrombie “;is not hesitant to take action or express what he thinks is right,”; he said.

Attorneys for the Media Council want the matter reclassified from restricted to ”;permit-but-disclose”; status to allow for greater transparency for the public. Such a categorization allows public comments to be put into the record.

“;That's typically what they have in rule-makings,”; said Angela Campbell of the Institute for Public Representation at Georgetown University Law Center, which is representing the Media Council.

“;It's much fairer. That's what we asked for,”; Campbell said.

In the Nov. 9 letter, HITV attorney Johnson questions “;what relevant contribution unspecified members of the public or unidentified members of Congress can make to the resolution by the Commission of the specific legal issues that have been raised, in this proceeding.”;

“;Nothing is to be gained by allowing this proceeding to be debased by converting it into a form of 'American Idol'-style of popularity contest, with the contesting parties each vying to fill the record with comments from the public and from elected representatives in favor of their respective positions on the merits and outcome,”; he wrote.

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Erika Engle is a reporter with the Star-Bulletin. Reach her by e-mail at .(JavaScript must be enabled to view this email address).