NAB Petitions U.S. Supreme Court Over Ownership

RADIO ONLINE | Monday, December 5, 2011 | 6:22pm CT

In a petition filed Monday by NAB, the trade association is asking the U.S. Supreme Court to determine whether the Third Circuit correctly upheld and retained future jurisdiction over media broadcast ownership rules as set by the FCC. The DC Circuit previously held that the local television ownership rule approved by the Third Circuit was arbitrary and capricious and not necessary in the public interest.

NAB says that the Court's review is required to settle a basic difference of opinion between the Circuits in interpreting the congressional mandate in Section 202 of the Telecommunications Act of 1996 (1996 Act). In the 1996 Act, Congress directed the FCC to relax some of its restrictions on common ownership of local broadcast stations. Congress then ordered the Commission to periodically review its media ownership rules to "determine whether any of such rules are necessary in the public interest as the result of competition," and to "repeal or modify" those remaining rules that are "no longer in the public interest."

Reviewing the very first rulemaking proceeding to emerge from that statutory directive, NAB says the D.C. Circuit found that the Commission had not gone far enough in implementing a fundamentally deregulatory congressional mandate. The D.C. Circuit held that the Commission had failed to justify its decision to disregard the impact of non-broadcast media on the local television market in issuing a rule restricting common ownership of local television stations.

Declaring the rule arbitrary and capricious, the D.C. Circuit remanded to the Commission to adopt only those regulations that were truly "necessary in the public interest." Notwithstanding the D.C. Circuit's holding, the Commission later readopted the exact same rule for three local television ownership that the D.C. Circuit had previously disapproved, and the Third Circuit upheld that rule, says the filing.

In doing so, the trade association maintains that the Third Circuit approached the inquiry very differently than the D.C. Circuit had, concluding that the provision had no deregulatory force. Accordingly, there is now a split of authority between the D.C. Circuit and the Third Circuit. Moreover, because the Third Circuit's rule will govern the television industry nationwide at least until the completion of the next quadrennial review, the Third Circuit has, in effect, overruled the D.C. Circuit, which is the prerogative solely of this Court.

The Third Circuit's ruling is unjustifiable, continued the filing, and threatens serious harm to broadcasters -- in some cases, putting their very survival in doubt. It also thereby threatens serious harm to the viewing public, which depends on the news and other programming provided by local broadcasters. This Court's review is necessary to resolve the unseemly split between the Circuits -- particularly since the same issues raised here will continue to recur at future quadrennial reviews, and since the Third Circuit has improperly purported to retain jurisdiction over the Commission's next quadrennialreview decision.