The Solicitor General of the United States, on behalf of the FCC, has asked the Supreme Court to review a U.S. Third Circuit Court of Appeals decision overturning most of its media ownership deregulation decision, hammering the circuit for what the FCC suggested was serial obstruction of what it had concluded was in the public interest.
The FCC said that it has been trying to grant the ownership dereg for 17 years, thwarted by a series of decisions by a divided panel of the Third Circuit. It said the most recent decision to vacate "a host of significant rule changes" was based "solely on the ground that the agency had not adequately analyzed the rules’ likely effect on female and minority ownership of broadcast stations."
The FCC argues that for those 17 years the court has blocked it from exercising its mandate by Congress to repeal or modify any ownership rule it determines is no longer in the public interest.
It said the latest decision "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 FCC has concluded that allowing broadcasters more ownership flexibility in a market crowded with competing content providers serves that public interest, and told the Supreme Court that the Third Circuit's obstruction of that effort "[has] saddled broadcast markets nationwide with outdated rules that the FCC has repeatedly concluded—and that the panel has acknowledged—are preventing struggling traditional outlets from entering transactions that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."
"This Court’s intervention is necessary to restore the Commission’s discretion to regulate in the public interest," it told the Supremes in saying the court needed to hear its appeal.
The National Association of Broadcasters and the FCC teamed up to seek a full Third Circuit review of the three-judge panel decision throwing out much of the FCC's broadcast ownership deregulation order. The court declined that en banc review. At the time NAB said it was reviewing its options. Seeking cert from the Supreme Court is the last option for legal review.
In September 2019, the Third Circuit threw out, or at least threw back to the FCC, some of chairman Ajit Pai's effort to deregulate broadcast ownership and address a lack of diversity. The court said the agency "did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities," something the court had said in a previous media ownership ruling that the FCC had to do next time around.
The court vacated the FCC's elimination of the newspaper-broadcast and the radio-TV cross-ownership rules; its decision to 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 its elimination of attribution of joint sales agreements as ownership, as well as its creation of a diversity incubator program.
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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.