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Friday, March 31, 2006

A Star in Town. Since the Second Circuit is the most important commercial law federal court in the country, it should be no surprise that national appellate stars appear before it. Nevertheless, I have not noticed Carter Phillips's name on a Second Circuit decision as counsel (or anything else) in a while.

Phillips represented Tribune Televison Co. in Ellis v. Tribune Television Co. Tribune owned both television stations and a newspaper in the Hartford, Connecticutt area, in violation of FCC rules. Tribune had received several temporary waivers of the rules and has applied for a permanent waiver, but when the last temporary waiver had expired and the application for a permanent wavier was pending, Neil Ellis, a Hartford resident, brought suit under 47 U.S.C. 401(b).

Tribune moved to dismiss the action on the ground that the FCC had revised its rule prohibiting ownership of both television stations and newspapers in the same geographic area and that, under the new rule, its cross-ownership was legal. It also argued that the factual and legal issues involved in the case were not ripe because the FCC had not acted upon Tribune's application for a permanent waiver. Tribune finally argued that the doctrine of primary jurisction required dismissal in light of the administrative proceedings before the FCC.

Ellis moved for summary judgment.

While the motions were pending, implementation of the FCC's new cross-ownership rule had been stayed by the Third Circuit.

The District Couirt denied Tribune's motion and granted summary judgment in Ellis's favor.

The Second Circuit reversed, holding that the "district court erred in failing to recognize the FCC's primary jurisdction in this matter." The Court vacated the District Court's decision and remanded the case to the District Court with instructions to dismiss.

The decision, which was issued on March 29, 2006, can be found on the Second Circuit's website.

Congratulations, Carter!

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