As expected, broadcasters and newspaper publishers have petitioned the Supreme Court to review the Third Circuit Court of Appeals decision vacating most of the FCC's effort under chairman Ajit Pai to deregulate broadcast ownership, including by eliminating the newspaper-broadcast cross-ownership rules.
Echoing the FCC's petition for Supreme Court hearing also filed Friday (April 17), media petitioners said that outdated ownership rules remain in force because a divided panel of the court has prevented the FCC from implementing "necessary adjustments to its ownership rules" that the FCC concluded would serve the public interest.
"The Third Circuit’s decision was not based on the rules’ merits or on any defect in the competition analysis Congress directed the FCC to perform," they told the Supremes; indeed, no party disputed any aspect of that analysis. Instead, the Third Circuit’s decision was based solely on the panel majority’s atextual policy concerns about ownership diversity."
In September, the court panel 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.
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.
Broadcasters and the FCC sought en banc review of that panel decision, which means the whole court would look at it, but the court denied that appeal.
The Petitioners are Bonneville, Connoisseur Media, Fox, the National Association of Broadcasters, News Corp., the News Media Alliance, Nexstar, The Scranton Times L.P., and Sinclair Broadcast Group.
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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.