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Media ownership is one of the hottest issues
in the United States today, and attorney
Kathryn Schmeltzer is one of the top lawyers
arguing on behalf of broadcast companies
in court and before the FCC. As a partner
with Pillsbury Winthrop Shaw Pittman’s
communications group, Schmeltzer helps
broadcast companies challenge FCC rules,
acquire and maintain licenses, and litigate
cases.
An expert in FCC rules, Schmeltzer has
been engrossed in challenging the multiple
ownership rule, which the FCC relaxed
in 2003 as a result of a challenge from
her client, Sinclair Broadcast Group. The
Supreme Court denied certiorari on the case,
and it is now back before the FCC and has
been delayed.
“The problem with the FCC now is they are
short two commissioners, and they’re waiting
for nominations to be made,” Schmeltzer
said. “So that has slowed the processes
there a bit.”
Schmeltzer, who spent more than four
years working for the FCC, said the multiple
ownership rules are unfair to Sinclair, which
is one of the nation’s largest broadcast
companies.
“One of the rules that the Commission has is
a television duopoly rule limiting the number
of television stations that you can own in a
particular market. They liberalized it a little
bit in an order that they put out in 2003,
but Sinclair felt that they had not gone far
enough and that there were still problems
with the rule,” she said. “The chief television
companies want to be treated equally with
other companies. Cable companies can own
television stations. Other multimedia entities
can own television stations. And you can have
a cable company owning a network, owning a
television station in a particular community.
But if you’re just a television broadcaster,
you can’t have two television stations. So
they really feel that they’re not being treated
equitably.”
In one high-profile case, Schmeltzer
successfully represented the Lutheran
Church-Missouri Synod during an FCC
hearing and subsequent appeal involving the
church’s challenge to the implementation of
the FCC’s affirmative action requirements.
In another case, she successfully defended
the former owner of two Arizona television
stations fighting to get back his license from
the new owner. Victories in such challenges
are rare.
Schmeltzer said the key to her success
has been flexibility, and she urges new
attorneys to be open minded about jobs
when they start their careers and even
during law school. Before deciding to go to
law school, Schmeltzer planned on joining
the Central Intelligence Agency. A Russian
literature and language student, she figured
her skills would fit well with the CIA. Then
someone told her most of the higher-ups
in government had law degrees and that
she should apply to law school. By the time
she earned her J.D. from the University of
Virginia School of Law in �973, Schmeltzer
was hooked on the law and spent a year
clerking for a D.C. Superior Court trial-level
judge before joining the FCC.
“Frankly, at that point in time, not that
many firms were hiring women, but
the government was,” she said. “So I
looked at the FCC and I also considered
the Department of Housing and Urban
Development because real estate was
another area that I was interested in. And I
got the job at the FCC.”
Schmeltzer says she has witnessed many
changes at the FCC over the years and
believes the agency is more political now
than it used to be. With increased indecency
fines in the wake of the so-called Janet
Jackson “wardrobe malfunction” scandal
at the Super Bowl, many of her broadcast
clients are nervous and unsure of how to
avoid upsetting the FCC.
“There have been a lot of indecency fines,
although they’re all still in litigation. They
haven’t gone up to the Court of Appeals yet.
Undoubtedly they will at some point in time.
Because there’s a real issue about whether
the FCC’s indecency regulations are arbitrary
and capricious,” she said. “We’ll see what
happens with those. There was a period
about a year ago when it seemed as though
complaints of indecency were coming out of
the woodwork.”
The inner workings of the FCC have changed
considerably since Schmeltzer worked at the
agency.
“There have been a lot of changes. When
I worked at the FCC, I started out at the
Review Board, which was an intermediate
appellate body. And that doesn’t exist
anymore,” she said. “Then I went from there
continued on back
Kathryn Schmeltzer, partner, Pillsbury Winthrop Shaw Pittman’s communications group [by Regan Morris]
As a partner with Shaw Pittman’s communications group, Kathryn Schmeltzer represents a variety of
media companies, from television giant Sinclair Broadcast Group to high school radio stations in Indiana.
LawCrossing speaks with Schmeltzer about her career and how she navigates the ever-changing and
complex world of the Federal Communications Commission.
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to the Hearing Branch and actually tried
cases on behalf of the FCC, so I was involved
if there were cases brought by the FCC
against license renewal applicants.”
The FCC also participated when there were
new applicants vying for licenses and the
agency would hold comparative hearings to
determine who would get the license, she said.
“At the time there were a lot of
administrative law judges. Right now
they’re down to two administrative judges.
They don’t have hearings for new facilities
anymore; instead they auction off facilities,”
she said. “Every now and then there may be
a license renewal hearing, but they’re few
and far between. Now the procedure is once
an administrative judge issues an initial
decision, it goes right to the full commission.
So there’s not this intermediate board. It’s
more efficient, but it may be a little more
politically driven. I have seen over the years
I’ve seen the FCC more politicized, which is
unfortunate actually.”
Despite the many changes, Schmeltzer’s
experience inside the FCC has helped her
navigate the agency in private practice and
she urges attorneys to cut their teeth inside
the government before going into private
practice. After 4 �/2 years with the FCC,
Schmeltzer joined Washington, DC, boutique
communications firm, Fisher Wayland
Cooper Leader and Zaragoza, as the first
woman in the firm. Fisher Wayland grew to
about 35-40 attorneys before merging with
Shaw Pittman in 2000.
“In the old days there were more outside
attorneys who had worked for the FCC for
at least some time. Nowadays there are
fewer. I’m not sure exactly why. Maybe it
may be because law firms pay more,” she
said. “It’s just good knowing how the agency
works and knowing the people there. I think
it helps a lot.”
Schmeltzer, who has served as president
of the D.C. Chapter of American Women
in Radio and Television, said she likes the
variety of clients in her practice and has
represented small college and high school
radio stations over the years, often pro bono.