Briefing Schedule Set in FCC JSA/Media Ownership Challenge

The U.S. Court of Appeals for the D.C. Circuit has set the briefing schedule on broadcaster challenges to the FCC's April 2014 media ownership rule decision, but has made those briefs far briefer than broadcasters had requested.

Initial petitioner briefs, there will be two of them, will be due to the court April 13. One of those is being filed by the National Association of Broadcasters, Nexstar and Howard Stirk Holdings, the other by Prometheus Radio Project. Both have issues with the FCC decision, but Prometheus is opposing what the other broadcasters support, and vice versa. There are intervening deadlines for briefs from amici and intervenors on both sides. The FCC's brief is due June 11. Reply briefs are all due July 27. Final briefs are due Aug. 6. If the court holds to form, that means oral argument in the case will be no sooner than late September 2015.

NAB et al. are challenging the FCC's decision to make joint sales agreements of over 15% attributable as ownership interests, saying the decision was arbitrary and capricious. Prometheus says that decision was arbitrary and capricious, too, but because the FCC did not explain why 15% was the magic number, and because it did nothing to rein in other sharing arrangements.

The challenges extend beyond JSAs and sharing agreements to broader ownership issues, including the FCC's decision not to loosen the newspaper/broadcast crossownership ban.

Given that NAB and Prometheus are coming at the FCC from two very different directions, the two petitioners agreed to ask the court to be allowed to file separate briefs of 19,000 words apiece, pointing out there was a lot of ground to cover—a typical length for even a small brief is 14,000 said one of the attorneys who sought that word length. Instead the court has only given them a combined 18,000 words and the FCC the same 18,000 for its initial brief, according to a copy of the court's order issued Friday (Feb. 20).

An attorney representing Prometheus said they will also have to fit in their arguments for changing the venue to the Third Circuit, which the D.C. court told it to address in its brief. Prometheus had filed in the Third Circuit. In challenges to the same rules in different circuits, there is a lottery to see which court gets the case (held by the U.S. Judicial Panel on Multidistrict Litigation), and D.C. won, as did NAB, which prefers that venue and will oppose Prometheus' request that the court transfer it, another reason why they needed to file separate briefs.

The Third Circuit is the one that over a decade ago remanded the Michael Powell FCC's deregulatory media ownership changes, which the FCC is still dealing with after succeeding efforts by other chairmen—and ensuing lawsuits by broadcasters and others—to address the Third Circuit's remand.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.