Justice Delays Firing at Prometheus

The Bush administration and the Federal Communications Commission have asked for more time to decide whether and how to ask the Supreme Court to uphold sweeping broadcast deregulation approved by the commission in 2003.

Monday, they asked the high court for more time to think it over.

Much of the deregulation was thrown out by a federal appeals court in June on a challenge by Prometheus Radio Project.

If the Supreme Court grants the extension, the federal government will have until Jan. 31 to file an appeal; otherwise the petition is due Jan. 3.

The FCC won’t comment on the case and lawyers for the U.S. Solicitor General's office did not give the court specific reasons for seeking an extension.

However, the five commissioners recently completed a complicated and contentious rewrite of telephone rules and has had little time to focus on other major proceedings.

Media lawyers following the broadcast ownership case say the FCC has no clear path to a Supreme Court challenge and may be having trouble coming up with a rationale likely to succeed.

That’s because the lower court’s order to rewrite the broadcast rules does not meet the obvious criteria for winning an appeal hearing.

The order, handed down by the federal appeals court in Philadelphia does not conflict with any other court rulings and there are no constitutional arguments the FCC could make without putting a huge portion of its media regulation at risk of being overturned.

On the other hand, a number of high profile media companies wouldn't mind putting that huge portion at risk, recognizing that the case offers a long-shot chance of eliminating burdensome ownership rules and possibly other regulations. They have indicated that they will ask the court to strike down broadcast ownership regulation as unconstitutional.

In previous filings to the court, several broadcasters hinted they will ask the court to review whether its 1969 Red Lion decision upholding scarcity as a rationale for regulation, continues to apply.

The FCC, however, is unlikely to sign on to such a sweeping challenge because striking down Red Lion could jeopardize other broadcast regulation, such as indecency restrictions and children’s programming quotas.