Third Circuit Won't Hear Appeal of Broadcast Dereg Smackdown

The U.S. Court of Appeals for the Third Circuit won't review a three-judge panel decision throwing out much of the FCC's broadcast ownership deregulation order according to a court document obtained by B&C

The full court did not explain why it would not review the decision, but en banc rehearings are not routine. 

The National Association of Broadcasters had joined with the FCC in seeking the full court hearing. 

In September, the court panel ruled on an appeal by Prometheus et al. of the FCC's fall 2017 decision under chairman Ajit Pai 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 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; create a diversity incubator program; and create some diversity mechanisms to address the court's long-standing concern. 

The court vacated most of the order, while remanding a couple of elements back to the FCC for more work. 

"The rapid dismissal of the FCC and industry rehearing petitions is hardly surprising in light of the weakness of their positions," said Andrew J. Schwartzman, senior counselor, Benton Institute for Broadband & Society. "Chairman Pai should stop posturing and do what the court has told the FCC to do, not once, not twice, not three times, but four times."

If the FCC or NAB want to continue to appeal the FCC order, the next stop is to seek Supreme Court review. NAB had no comment but Pai has made it clear he sees the Third Circuit as an ongoing and unreasonable check on the FCC's efforts to square regulations with a broadcast market now facing multiple video competitors who are not subject to similar ownership constraints. 

“NAB is extremely disappointed with the Third Circuit decision and we are reviewing our options," said NAB spokesman Dennis Wharton.

“The court’s rejection of the Trump FCC's rehearing request is a welcome setback to broadcast-industry efforts to pave a path to greater media consolidation," said Free Press VP of strategy and senior counsel Jessica J. González.

“If only the Commission had committed the time and energy expended in these legal shenanigans to actually doing its job. Had it studied the impact of its rule changes on ownership opportunities for women and people of color, we'd have a factual and principled record upon which to do reasoned policymaking to advance the public interest. The FCC needs to take the hint: Instead of wasting everyone’s time, it must undertake the court’s mandate in earnest.”

John Eggerton

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.