FCC Petitions U.S. Supreme Court Over Media Ownership Rules

RADIO ONLINE | Saturday, April 18, 2020

Federal Communications Commission

The Solicitor General, on behalf of the FCC and the DOJ, is petitioning the U.S. Supreme Court to review the judgment of the the U.S. Court of Appeals for the Third Circuit when it vacated the order in the Prometheus Radio Project v. FCC case remanding the Commission's 2018 Incubator Order and its 2017 Order on Reconsideration reinstating the Newspaper/Broadcast Cross-Ownership Rule, Radio/Television Cross-Ownership Rule, Local Television Ownership Rule, Local Radio Ownership Rule and Television Joint Sales Agreement Attribution Rule as they previously existed.

On what's become a rather lengthy fight over media ownership rules, the FCC has battled the Third Circuit following the review of the rules as part of a mandate under the Telecommunications Act. The agency had ruled that new media sources brought about by the Internet, no longer made sense to maintain a ban on a company owning a local newspaper and broadcast station in a single market.

The FCC had sought a rehearing by the full U.S. Court of Appeals for the Third Circuit in its decision in the Prometheus Radio Project case. Many broadcasters felt that as a result of the decision, there has been a significant and unnecessary delay in the FCC's consideration of possible changes to its broadcast ownership rules, a process limiting the continued ability of radio outlet to compete with newer digital technologies.

"Here we are again," began an opinion on September 23, 2019 by Circuit Judge Thomas Ambro, who faulted the Commission for failing to adequately explain how the rule change would lead to more female and minority ownership of media outlets.

The FCC, including Chairman Ajit Pai, believes that the Third Circuit has overstepped itself by turning a review of rules meant to ensure healthy competition of viewpoints into a test of what best promotes diversity.

In a cert petition filed on Friday, Solicitor General Noel Francisco said the lower appellate court "flouted bedrock administrative law principles that require judicial deference to agency policy choices, as well as this Court's repeated FCC-specific admonitions that courts must respect the Commission's reasonable judgments about what measures will best serve the public interest."

"The panel's rulings have saddled broadcast markets nationwide with outdated rules that the FCC has repeatedly concluded -- and that the panel has acknowledged -- are preventing struggling traditional outlets from entering transactions that would allow them to retain economic vitality," continued the petition. "The panel's vacaturs have also had the perverse consequence of preventing the agency from studying the effects of its revised ownership rules on women and minorities, thereby gathering the very data the panel insists are necessary for informed rulemaking."