In advance of the Supreme Court's Jan. 19 oral argument on the FCC's 2017 broadcast ownership deregulation decision, opponents of that FCC decision have briefed the court on their position that a federal appeals court was correct in vacating and remanding the decision back to the FCC with the instruction to "do its homework."
Broadcasters—and the FCC—are appealing that "do your homework" Third Circuit Court of Appeals stay of FCC media ownership deregulation.
The Prometheus Radio Project, Common Cause, and a host of others filed a joint brief Wednesday (Dec. 16) explaining why the appeals court stay was justified and why the FCC should have to show the court how the FCC's deregulatory moves did not adversely affect diversity in broadcasting.
They said the FCC, if it is going to profess a commitment to diversity, which it has, must "reasonably" implement that commitment--and explain to the court how its dereg moves furthers that, something they say the FCC has not done, but could and should.
"The Commission [then chaired by Democrat Tom Wheeler] first concluded that largely retaining local rules was necessary for the public interest," the parties briefed the High Court. "One year later, upon reconsideration of the same record after a change in Commissioners [and a new Republican chairman], the Commission reversed course," they said. "The Commission did not purport to base that reversal on any change in ownership-diversity policy. Instead, the new Commission majority justified its action based on an arbitrary analysis of the same facts: It asserted that wholesale deregulation would not harm this public-interest goal—even though any reasonable analysis of the record showed that past deregulation caused harm."
They argue the FCC did not provide a "reasoned analysis" of that issue, which led the Third Circuit rightly to vacate and remand the order, which they pointed out to the court, "leaves the agency free to reach the same result on remand if it provides a reasoned basis for its assessment."
In November 2017, a Republican FCC majority, assailed by Hill Democrats who tried to block the vote and FCC Dems who strongly dissented, voted to eliminate some decades-old broadcast regulations and tweaked others in what broadcasters have argued was a necessary move to allow them to remain relevant in a sea of less-regulated competitors.
The decision eliminated the newspaper-broadcast and the radio-TV cross-ownership rules; allowed dual station ownership in markets with fewer than eight independent voices after the duopoly, created an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC is not calling it a waiver); and eliminated attribution of joint sales agreements as ownership; and create an incubator program.
The Third Circuit remanded that order, saying the FCC had not sufficiently gauged its impact on diversity, as the same court had said was required of the FCC when it proposed to deregulate broadcast media.
That led to the broadcaster/FCC appeal, which the court agreed to hear.
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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.
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