A Tiger's Tale

Finally, the Denver JOA faces some real opposition -- but it's probably too little, too late.

The March 30 press conference near the federal courthouse downtown didn't contain many surprises. For instance, it wasn't shocking that Jake Jabs, tiger-hugging owner of American Furniture Warehouse, would be heading up a cadre of people upset about rising ad rates in the wake of the joint-operating agreement between the Denver Post and the Rocky Mountain News. Nor was it astonishing that these complaints would appear in a lawsuit filed in U.S. District Court. It was just amusing, given that last summer, Jabs announced that he would serve as president of the Colorado Civil Justice League, an assemblage of heavyweights, including Gale Norton, former Colorado attorney general, and current Secretary of the Interior, with the goal of "combating runaway litigation" ("Blowing Smoke," September 14, 2000). Indeed, the only thing unexpected was that the rally hadn't taken place before former U.S. attorney general Janet Reno's January approval of the JOA, which set into motion events no ruling is apt to stop.

Granted, Jabs was among the few to protest the JOA during the comments period set aside by the Newspaper Preservation Act of 1970, which made such pacts possible. But at the press conference, he said he'd initially decided not to challenge the agreement in court following meetings with Dean Singleton(Post owner and chairman of the Denver Newspaper Agency, which was created to oversee the combined business operations of the Post and News) and DNA president Kirk MacDonald, at which he swears they promised that rates would increase by 5 to 10 percent, not by many times those amounts.

Singleton responded to these statements, first made by Jabs after a meeting with advertisers on March 27, with the sort of unsoftened blows capable of making any journalistic Grinch's heart grow three sizes. The March 28 Post quoted him as saying that Jabs had "terrorized both newspapers for 25 years," and adding, "I am not afraid to call Jake a bully, a liar and a deceptive businessman. I am looking forward to a Denver Post and a Rocky Mountain News with no American Furniture ads." Talk about a wish come true: The company's April 1 advertisements included a Jabs note bidding farewell to the dailies, with which he says he's been spending $3 million per annum.

Joining Jabs in withdrawing were outfits such as Jerry Roth Chevrolet, which also dropped its ads after April 1, following a "Good-Bye to the Denver Post!" sale. But the folks at Roth were notably quiet during the period when their gripes would have had a better chance of persuading the Justice Department to hold JOA hearings, as were members of Coloradoans Against Newspaper Monopolies, a collection of approximately twenty disgruntled advertisers and others listed as co-plaintiffs in the suit, which was put together by attorney Thomas McMahon of Powers Phillips, P.C. (The third party on Jabs's side is Ryan Ross, a former Westword reporter who last year wrote the most detailed brief in opposition to the pact.) Shannon Scott of Cherry Creek's Face & Body Sculpting International, representing the group at the press conference, conceded that she hadn't considered lifting her voice against the JOA until she was quoted rate increases of 650 percent.

The first of four claims for relief in the suit -- that the News doesn't fit the definition of a failing newspaper as envisioned by the authors of the Newspaper Act -- is similar to the argument put forward by Ross, which Reno previously rejected. But the others take relatively fresh approaches: One cites Colorado law involving "deceptive trade practices," while the other two suggest that the JOA violates advertisers' constitutional rights under the First Amendment after classifying ads for products as speech similar in character to political commercials.

This last argument, Jabs supporters believe, has not been used as a weapon against past JOAs and could pique the interest of Judge John Kane, who will hear the case; Kane is a jurist known for his open-mindedness. But the failure of dissenters to take full advantage of Newspaper Act mechanisms for objections prior to the attorney general's decree could well be used against them -- and if Reno, a Bill Clinton appointee, was unfriendly to their plight, imagine how unimpressed John Ashcroft, George W. Bush's ultra-conservative AG, is likely to be. Worse, the Newspaper Act leaves hardly any options for aggrieved individuals once a JOA has been blessed, beyond a paragraph confirming that the agreement doesn't exempt "predatory practices." Hence the suit casts its lot with the labyrinthine Administrative Procedure Act, which gives district courts license to review actions of government agencies under certain conditions.

Nevertheless, the odds that Judge Kane will grant a temporary restraining order preventing the April 7 and 8 bow of the combined Post and News, as the Jabs people want, are hardly better than those that Jimmy Hoffa will reveal that he's alive and well and about to star in a sitcom called Hoffa My Back! (The merged classified section has already debuted.) So why have local TV stations and radio outlets provided more coverage of the Jabs suit than of any other aspect of the agreement since its May 11 announcement? Could it be because executives there realize that stories on the topic carry the message that they sell advertising, too, and at much more moderate prices? That's a tempting theory, albeit one that could also be applied to Westword. Not that anyone would ever doubt the purity of my heart.

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