FCC Challenges Court's Broadcast Dereg Smackdown

The FCC is seeking full-court review of a three-judge panel decision vacating its broadcast media ownership deregulation decision. 

The Commission filed a petition for review Thursday (Nov. 7), arguing that the three-judge panel decision of appeals court imposed burdens beyond those allowed in the Administrative Procedure Act, second-guessed the FCC to the point that it undermined congressional intent, and breaks with higher-court and sister-court precedents. 

Related: Third Circuit Again Hears Ownership Dereg Challenge 

In September, that panel of the U.S. Court of Appeals for the Third Circuit vacated most of the FCC's deregulatory order, saying the agency "did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities." 

The court was hearing an appeal by Prometheus et al. of the FCC's fall 2017 decision under chairman Ajit Pai to eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after that duopoly created an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC was not calling it a waiver); and eliminate attribution of joint sales agreements as ownership; and created a diversity incubator program." As well as create some diversity mechanisms to address the court's long-standing concern.  

Pai signaled back in September that the FCC would challenge the decision and made it clear what he thought of the court's persistent remands of FCC deregulatory decisions. 

“For more than twenty years, Congress has instructed the Federal Communications Commission to review its media ownership regulations and revise or repeal those rules that are no longer necessary," said Pai at the time. "But for the last fifteen years, a majority of the same Third Circuit panel has taken that authority for themselves, blocking any attempt to modernize these regulations to match the obvious realities of the modern media marketplace. It’s become quite clear that there is no evidence or reasoning—newspapers going out of business, broadcast radio struggling, broadcast TV facing stiffer competition than ever—that will persuade them to change their minds. We intend to seek further review of today's decision..." 

An FCC spokesperson was echoing that Thursday (Nov. 7), saying “Over the last 15 years, while the media marketplace has changed dramatically, the same Third Circuit panel has repeatedly prevented the FCC from modernizing its ownership rules, including the newspaper-broadcast cross-ownership rule that dates back to 1975. We hope that the full Third Circuit will agree to hear this case and finally allow the FCC to update these rules for the digital age.”    

"It is extremely disappointing that the FCC would prefer to fight rather than do what would benefit everyone, which is to assess the impact of its actions on its goals of localism, diversity and competition," said Andrew Jay Schwartzman, senior counselor at the Benton Institute and one of the attorneys who argued the case for those challenging the dereg. "As a legal matter, this petition comes 15 years too late; the FCC's challenge is really to what the same judges found in 2004, and if it had problems with the initial holding, it would have had to make this appeal at that time."

“As required by Congress, the FCC has made concrete efforts to update the agency’s outdated media regulations to reflect the modern marketplace for news and entertainment," said Americans for Prosperity VP for legal and judicial strategy Casey Mattox. "The Third Circuit panel has prevented the agency from doing the job it was charged to do by our elected officials. We encourage the full Third Circuit to hear this case and allow the FCC to revise its outdated regulations. This will allow the agency to better serve the current news and information market while complying with the law Congress enacted.”

“For 15 years two judges on the Third Circuit have had a vexing veto over sensible media regulation modernization," said former Republican FCC Commissioner Robert McDowell. "It’s as if the Internet does not exist in Philadelphia. The Pai era order was thorough to the point of overkill. I think that the full Third Circuit will clearly see that the FCC’s 2017 order was well-reasoned, thoroughly explained and supported by the great weight of the evidence. It is time to bring an end to this bizarre vicious cycle that is completely out-of-touch with market realities.”

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.