U.S. Supreme Court to Hear FCC Media Ownership Dispute

RADIO ONLINE | Friday, October 2, 2020

U.S. Supreme Court

The U.S. Supreme Court agreed on Friday to hear an appeal by the Federal Communications Commission and the National Association of Broadcasters to a lower court ruling blocking changes to broadcast media ownership regulations. The nearly two-decade dispute contests the Third Circuit Court of Appeals' ruling on the Commission's 2016 quadrennial review order that attempted to institute modest reforms to broadcast media ownership regulations.

In September, 2019, a three-judge panel of the Court vacated the FCC's 2016 order. The panel has rejected multiple attempts by the FCC to modernize its media ownership rules for the past 15 years.

NAB claims the media marketplace has changed dramatically, with the advent of smartphones, social media and streaming video and audio, as well as the widespread availability of cable television and satellite radio and television -- all of which are less regulated than the broadcast and newspaper industries. Although Section 202(h) of the Telecommunications Act of 1996 explicitly instructs the FCC to account for these competitive changes, the Third Circuit continues to block its efforts to do so.

NAB says that Respondents never challenged the FCC's statutorily required competition analysis and make no serious effort to confront the statutory text. Instead, because they prefer the Third Circuit's elevation of policy preferences over the language Congress adopted, they insist that this Court cannot even interpret Section 202(h) unless the Commission first determines whether the statute requires consideration of diversity. NAB says that argument is beside the point because the question presented here is whether the Third Circuit correctly interpreted Section 202(h) in setting aside the Reconsideration Order, not whether the FCC correctly interpreted the statute.

NAB also claims that Respondents' insistence that petitioners can and should simply present their statutory arguments to the Commission during the next quadrennial review and hope that the Commission accepts their position despite the Third Circuit's ruling is equally flawed. Petitioners' statutory arguments are properly before the Supreme Court now, and they have waited long enough -- almost 20 years -- for the regulatory relief that Congress envisioned under Section 202(h). NAB says the outdated rules the Third Circuit restored continue to "have a severe, negative impact on America's broadcast and newspaper industries and on the public."

In a statement, NAB President and CEO Gordon Smith said, "NAB looks forward to presenting our case before the Supreme Court this term. For almost two decades, the Third Circuit Court of Appeals has blocked common-sense changes to outdated broadcast ownership regulations to the detriment of local journalism. The time has come to allow the FCC to modernize its rules."