A lot of people, public interest folks, are very concerned that a future Commission—and even Mr. Martin’s commission might have a whack at it—would approve many mergers under these tests, which are very murky and unclearly specified. Other people say, “I lost the ban, and you know what, I’m going to have a Democratic commission in 18 months.” And if Michael Copps were chairman of a 3-2 commission with democrats in the majority, he’s not going to approve lots of mergers. He doesn’t have to under this test.

So to say that it’s better or worse than Mike Powell’s proposal? Eh, it’s just different.

CH: Just to be clear, these rebuttal decisions are to be made by the five commissioners themselves, on a case-by-case basis?

MC: That’s right. They’d vote on them themselves.

CH: Don’t they already do that?

MC: Oh, they certainly do. They voted to extend the waiver for Tribune [which owns newspapers and TV stations in the same markets] by a 3-2 vote.

CH: So how different is this from the preexisting ad hoc waiver system?

MC: Well, let’s be clear. The preexisting system was not much of an ad hoc waiver system for a long time. From ’75 to ’98 or so, there were not a lot of waivers issued. It’s only in the last decade that you’ve gotten a lot of these big deals: the Tribune deal, where they bought up a bunch of TV stations and newspapers, and Murdoch has come forward and bought a newspaper when he owned two TV stations in New York.

Some people would argue that the economics of the industry is driving them to look for the economic efficiencies of the mergers. Other people will say, I among them, that the challenge to journalism, certainly print journalism, is not in physical space, so much as cyberspace—so the solution to the problem is not in physical space. It’s figuring out a business model that looks at online distribution.

If you look at the troubled newspapers in America, they’re predominately in the larger markets, and their problem is that they are competing with online advertising and online sources, and they have to solve their online problem. Which they’ve started to do. In the last year, almost every paper has signed two deals for online advertising, one for general advertising and one for classified advertising. So after ten years, they’ve figured out the Internet matters.

CH: So you’re saying this physical solution, as you described it, isn’t really a solution, it’s just a stopgap.

MC: In my opinion, yes. When you merge a TV station and newspaper, they think they can repurpose the news, and they think they can save some money on the cost side. And they do. They lay people off. But their real problem is on the revenue side. Their real competition is in cyberspace. And newspaper Web sites already beat the pants off of TV Web sites. So it’s entirely unclear how this new rule is the solution to newspapers’ financial problems.

As the rule was written Tuesday, it had two “get out of jail free” cards. One is—and this has been an exception in the past—if the merger involves a failing firm, and the merger would not otherwise be approved, that merger can be approved, since the dieing firm is exiting the market. The post-merger market would be no different, since the firm would have been eliminated anyway.

The second is if you are merging with a TV station that doesn’t already do news—and only about half the TV stations in the country do local news—and you commit to providing local news. Because then its hard to see how that’s against the public interest, because you’re getting a new news voice.

So then, of course, the debate becomes “how much local news? What do you mean by local news?” Do we mean at least half an hour of local news each night? Or an hour a day, with a morning show?

No one has confidence about how these factors will be applied. It’s up to the five commissioners, whoever they happen to be.

The other thing is that there’s a big brou-ha-ha over the process by which this rule was brought into existence in the first place.

CH: Tell me more about that.

MC: Well, our view is that the people have to have the opportunity and fair notice to comment on and react to the rules under which they will live. That’s a good definition of democracy. So we have the Administrative Procedure Act, which says the Commission is supposed to give proper notice—and opportunity for comment—to the public.

In the 2003 case, the interveners, Consumer Federation among them, complained that the public never actually saw the rule. Powell held hearings and looked at evidence, but he never actually showed the rule he was going to apply to the public. He sort of said, “I’ve thought about this, and this is what I’m going to do.” The public never got a chance to comment on the specific rule Powell was going to propose.

To us, that was a violation of the Administrative Procedure Act. And then last month, Chairman Martin did what someone has called “a further notice of press release.” Instead of giving a notice of the actual rule, and putting it in the record, and publishing it in the Federal Register, and giving a fair comment period, he put out a press release with these vague ideas, and said, “Give me your comments.” This was the chairman’s personal action.

CH: So that was November 13? The day he wrote the op-ed in the Times?

MC: Your first question reflected the deception the chairman engaged in. The deception was that the new rule is limited to 20 markets. Because that’s what he said on the op-ed page. But that’s not what he said in the rule.

CH: Because the rule provides all sorts of ways…