FCC 375

Media ownership rule changes adopted by the Federal Communications Commission last fall are facing a fresh legal challenge. A pair of public interest groups has filed a petition for review with the federal appeals court in Washington, alleging the FCC failed to “consider the impact of its decisions on ownership diversity” when it reversed several earlier decisions made as part of the agency’s quadrennial media ownership review.

It was in a party-line 3-2 vote in November when FCC chair Ajit Pai led the Commission to vote in favor of the repeal of the 42 year-old newspaper-broadcast cross-ownership ban as well as the radio-television cross-ownership ban. The FCC also delivered a number of ownership rule changes to the television industry, including eliminating the so-called eight voices test and overturning a decision to make TV joint sales agreements attributable toward local ownership caps. For radio, the Commission didn’t change how the agency counts stations in embedded markets, but it did vote in favor of taking a presumptive waiver approach. That means any company contemplating adding a station in an embedded market will likely secure a waiver to the FCC’s ownership limits.

The three-page petition—filed Friday in the U.S. Court of Appeals for the D.C. Circuit by Free Press, Common Cause, Communications Workers of America and the Office of Communication of the United Church of Christ—asked the court to set aside parts of the FCC’s decision, on the grounds that it was “arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law.” The petition takes specific aim at the change of attribution rules for television stations that use joint sales agreements and shared services agreements, alleging that the shift was “not supported as a matter of fact or law.”

Free Press deputy director and senior counsel Jessica González said the FCC’s decision to relax media ownership rules was “patently discriminatory” and an example of how the agency bends over backwards to give favors to media conglomerates while women and minorities own “a pathetically low number” or radio and TV stations. “In effect, our filing says enough is enough to an agency that keeps failing to do its homework and fulfill its statutory mandate,” González said. “The courts must step in to avert this impending disaster and protect the public from Pai’s pro-consolidation plans.”

The filing in D.C. Circuit came a month after the federal appeals court in Philadelphia rejected an earlier request to put the FCC’s November decision on hold. Prometheus Radio Project and Media Mobilizing Project (MMP) had sought to keep the changes from taking effect. They argued the FCC took “numerous actions” that “acerbate” the agency’s failure to comply with earlier directives from the Philadelphia court. But the Third Circuit ruled the petition failed to show the FCC committed a “clear and indisputable abuse of discretion or error of law” and that the two groups would face “irreparable injury” if the new regulations were on the books.

While that may’ve been a setback, Prometheus and MMP are now gearing up for arguments expected later this year on their core argument for why the Third Circuit should strike down the media rule changes.