MC: That’s right. And there are other inconsistencies in the piece of paper that they put out. If he’d really intended, as he said in the op-ed piece, to limit it to the top 20 markets, he could have easily done so. But he didn’t. And when you get the piece of paper and compare it to what he said in the op-ed, it looks very different.

CH: So when was the actual plan made public? Tuesday?

MC: No. On November 13, he published another press release, which had a page attached to it, which looked liked a rule. But he never published it in the Federal Register. And if you look at the page, it’s got all these uncertainties. That’s not a real “rule.”

CH: Did the Commission pass the same language?

MC: No, they actually changed it. The “get out of jail free” cards didn’t exist on November 13. They also added language that said the goal of reversing any presumption is to increase competition and diversity among outlets. That didn’t exist in the original proposal. There’s a process here. And we were denied due process.

CH: Going forward, what sort of challenges do you plan to this rule?

MC: There will clearly be a court challenge. I’m certainly going to complain about the process. Then I’ll read his explanation. It’s possible he’ll write an explanation that makes sense, but I’ll point out all of the evil mergers that would slip through his sieve, and contend that those mergers are not in the public interest, and that he’s adopted a rule that would fail to meet the legislative obligation that would promote the public interest in merger decisions. So there will be a procedural challenge, and also a substantive legal challenge, both in the courts.

You may well get legislation in the Congress now that either tells the FCC it disapproves of its rule, or specific legislation that says “Here’s what the rule should look like.” Congress can take the decision out of the hands of the FCC. In some senses, decisions about media are so vital to democracy that they ought to be made by elected representatives of the people, and not by executive appointees at some agency.