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The Federal Communications Commission has asked a federal appeals court in Philadelphia to review a decision by a three-judge panel which in September blocked several changes to media ownership rules from taking effect. The controversial decision also blocked the launch of an incubator program designed to bring more women and minorities into radio ownership.

The FCC on Thursday petitioned for what’s known as an “en banc” review, which if granted, would put the fate of the media ownership rules before all the judges in the Third Circuit.

In a 2-1 decision issued in September, the Third Circuit struck down changes adopted by the Commission in November 2017 that, among other things, abolished the newspaper-broadcast and TV-radio cross-ownership bans and relaxed several television ownership restrictions, including allowing the same company to own two of the big network affiliates in a single market.

The Third Circuit panel said the FCC’s analysis, which led to the regulatory rollback, was “so insubstantial” that it failed to provide a “reliable foundation” to the court supporting the conclusions. “The Commission did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities,” wrote Judge Thomas Ambro in the decision. The court told the FCC that it needed to determine what impact the rule changes it proposed would have either through new empirical research or an in-depth theoretical analysis.

In their appeal, FCC attorneys said the decision issued two months ago is in conflict with earlier rulings by federal appeals courts and the Supreme Court, including upholding guidelines that say federal agencies don’t need to generate original data or studies before changing a policy. Earlier decisions have said agencies can instead rely on information collected in the public record, the FCC argued. “If left undisturbed, the decision would work a sea change in administrative law, hamstringing agencies in the innumerable cases where there are arguable gaps or shortcomings in a rulemaking record,” it told the court in the 18-page filing.

FCC As ‘Overseer’ Of Media Rules

Beyond simply process, the FCC expressed frustration that the Third Circuit has repeatedly struck down changes it has approved to media ownership regulations during the past 15 years under both Republican and Democratic control. In its petition, the FCC says the court has prevented the agency from fulfilling its legal obligation to conduct a quadrennial review of which media ownership limits are no longer in the public interest. It also points out the latest decision to reinstate the 1975 newspaper-broadcast cross-ownership limit came despite no evidence in the record seeking for it to be maintained.

“Through its several remands, the panel has effectively replaced the Commission’s broad-ranging public interest analysis with a narrow inquiry into the effect of the FCC’s rules on female and minority ownership,” the FCC said. The agency’s petition also said what the court has asked it to do—collect decades-old data that may not exist and to conduct analyses that are not defined—has set the Commission up for failure in the future. Instead, it says the full Third Circuit should take a “fresh look” at the case and restore the FCC to its “proper role” as the “overseer of media ownership regulation.”

Do Analysis, Don’t Appeal

Media ownership remains a charged issue and supporters of tighter ownership restrictions are critical of the FCC’s decision to appeal the Third Circuit’s most recent decision. Attorney Cheryl Leanza, who argued the case on behalf of several public interest groups, said the court got it right when it overturned the FCC’s changes to media ownership limits. “Rather than expending resources on appeals, the agency should finally correct its ownership data and craft policies that will increase the number of women and people of color who own radio and TV stations,” she said in a statement.

Attorney Jessica J. González, VP of Strategy at Free Press, said the Third Circuit may have blocked changes in four separate rulings over the years, but that’s simply because successive FCC chairs have tried to gut the “essential limits” on who owns radio and TV. “The court also ordered the agency to do the job it’s long refused to do: weigh all of the evidence showing the effects of media consolidation on ownership opportunities for women and people of color” she said. “Shamefully, instead of facing that task, Chairman Pai instead is pulling out his bag of legal tricks and procedural posturing to avoid having to conduct this analysis.”

But the FCC said the advocacy groups are missing the reality in front of them. “Over the last 15 years, while the media marketplace has changed dramatically, the same Third Circuit panel has repeatedly prevented the FCC from modernizing its ownership rules, including the newspaper-broadcast cross-ownership rule that dates back to 1975,” said an agency spokesperson. “We hope that the full Third Circuit will agree to hear this case and finally allow the FCC to update these rules for the digital age.”

Broadcasters Side With FCC

The FCC’s decision to appeal has the support of the National Association of Broadcasters and five radio and television companies, which filed a joint petition with the Third Circuit supporting a review of the September decision. The broadcasters said the court has created its own obligation that the FCC examines ownership diversity, displacing the federal law with a competition-based command. “Congress specifically instructed the FCC to analyze competition—not minority and female ownership,” they argued.

The broadcasters also said the court decision was “vastly overbroad and unjustified” since it vacated the FCC’s changes in their entirety, even though the judges said there was only one flaw in the agency analysis focused on minority and female ownership. Broadcasters said that has “nothing to do” with the overall changes, much less the creation of a radio incubator program. “The panel’s remedy in this case is vastly overbroad and inconsistent with the more precise approach taken by other circuits,” said the group, which in addition to the NAB also includes Bonneville, Connoisseur Media, Nexstar, News Corp., and Sinclair Broadcast Group.