Gray Television, one of the biggest backers of broadcast dereg, has filed its amicus brief with the Supreme Court, which is hearing the FCC's and broadcasters appeal of a Third Circuit Court of Appeals decision rejecting the FCC's most recent effort to lift and loosen local ownership rules.
In September, a panel of the Third Circuit ruled on an appeal by Prometheus et al. of the FCC's fall 2017 decision to 1) eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; 2) 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); eliminate attribution of joint sales agreements as ownership; 3) create a diversity incubator program; and 4) create some diversity mechanisms to address the court's long-standing concern.
That FCC decision was part of the FCC's quadrennial review of whether regulations were necessary in the public interest.
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.
In its brief, Gray Television said that Congress' mandate to the FCC in that regulatory review was to consider impact on competition as the "foundational consideration," which Gray said the FCC did. And while the Third Circuit vacated the rule dereg because it said the FCC did not sufficiently consider diversity, Gray said that is a different policy consideration, and that the court's decision reinstates outdated rules that should not be allowed to stand.
It argues that reinstating the restrictions harms small and mid-sized communities because "In an era when low-cost digital news sources undercut local journalism, these communities require substantial investment in order to receive high-quality local news and community programming."
While Gray concedes that the public interest includes viewpoint diversity, it argues that the statute's language that the review is of whether regs are “in the public interest as the result of competition,” makes competition the determining factor.
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