Broadcasters are arguing that the FCC does not need to have statistics on how repealing or modifying its broadcast ownership rules impact media diversity to make those changes.
The National Association of Broadcasters is arguing that point in a brief to the Supreme Court filed Thursday (Aug. 20) in support of its petition that the court hear its appeal of a lower court decision.
NAB said Congress was clear that competition analysis was what was statutorily required and that the court had inserted its own diversity concerns, despite the fact that "the Third Circuit has never identified any statute or regulation requiring the FCC to consider ownership diversity" in reviewing its regs.
Broadcasters are appealing a Third Circuit Court of Appeals stay of FCC media ownership deregulation. That was the FCC's November 2017 decision 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 the duopoly, creating an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC is not calling it a waiver); eliminate attribution of joint sales agreements as ownership; and create an incubator program.
The court said the FCC had not sufficiently gauged the impact of those changes on minority and female ownership, as the court had told the FCC it must do the last time the circuit weighed in on the FCC's long-standing attempts to loosen regs on broadcasters.
NAB said the key question before the Supreme Court is "[w]hether under Section 202(h) of the Telecommunications Act of 1996 the Federal Communications Commission may repeal or modify media ownership rules that it determines are no longer “necessary in the public interest as the result of competition without statistical evidence about the prospective effect of its rule changes on minority and female ownership." NAB said the answer is "yes."
NAB said that the court had thrown out most of the FCC's broadcast deregulation decision to "modify archaic rules solely because it concluded that the FCC’s analysis of ownership diversity was insufficiently robust. That same panel has for nearly two decades repeatedly elevated its own policy concerns over the statutory text."
FCC chairman Ajit Pai has also lodged that complaint.
Unless the Supreme Court takes the appeal, NAB said, "obsolete rules that no one contends are actually necessary in the public interest as the result of competition will remain, harming broadcasters, newspapers, and the public."
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