Supreme Court

Advocates for media ownership deregulation were dealt another blow last month when the Third Circuit Court of Appeals rejected a request for the entire panel to review a decision issued two months ago by a three-judge panel. That decision blocked several changes to media ownership regulations from remaining on the books, including changes to the radio subcap rules and an end to the cross-ownership restrictions. The move left the Federal Communications Commission with the decision of whether or not to appeal to the Supreme Court.

“We are studying the recent decision from the Third Circuit and have not yet made a decision about how to proceed,” FCC Chair Ajit Pai said last week during his monthly press conference. The most recent ruling didn’t give agency lawyers a lot to go on, but the FCC’s General Counsel office has plenty to chew over in the 2-1 decision issued in September. The Third Circuit 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 rollback in media rules adopted. 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.

While Pai hasn’t explicitly said whether he’d like to take the fight to the Supreme Court, the two other Republican commissioners have. “The reforms that we did are right and they’re worth fighting for and I’d support a decision by the General Counsel’s office to move forward,” said Commissioner Brendan Carr. He told reporters that the newspaper industry remains the warning for traditional media like radio and television as they face increased competition from digital outlets. “We have to make sure that we are allowing the investments in this space that are needed,” he said.

Commissioner Michael O’Rielly first said he’d back a Supreme Court challenge last April, long before the agency lost two rounds at the Third Circuit. Now he is also voicing his support for an idea floated by some broadcasters who’ve said that while the FCC fights the legal case they’d like to see the Commission adopt several of the media ownership rule changes individually. “If it didn’t interference with having to seek a case at the Supreme Court and it was legally permissible – and I’d take the advice of the General Counsel’s office on that – I would be more than happy to break it up to different pieces,” O’Rielly said.

‘The Agency Just Has To Get To Work’

The latest fight over media ownership rules landed in court after the FCC voted 3-2 in November 2017 to abolished the newspaper-broadcast and TV-radio cross-ownership bans, rework the radio subcap regulations, and relax several television ownership restrictions, including allowing the same company to own two of the big network affiliates in a single market. The advocacy groups who brought the challenge are now calling on the FCC to abandon its legal fight and instead take a fresh look at its media rules and come up with ways to help increase ownership diversity.

Commissioner Jessica Rosenworcel backs such a move. “Depending on how you count, it is the third or fourth time the Third Circuit has shipped our media ownership handy work back to this agency. You don’t have to know a lot about appellate courts, but that means they are not satisfied,” she said. “The agency just has to get to work, respond to the court, and work on the issues that we failed to do so, including issues related to minority and women ownership of these properties.” Rosenworcel’s position isn’t all that surprising considering she cast one of the two votes against the changes now being fought for.

Fellow Democrat Geoffrey Starks, the only commissioner who wasn’t serving when the November 2017 vote was taken, also thinks the Commission should direct its energy toward taking the steps the Third Circuit has demanded as it has repeatedly thrown roadblocks in front of the FCC. “The court has told us four times to collect data on our ownership. That makes it clear we have to figure out the impact to communities of color and women and we need to go ahead and do that,” Starks said.

Carr, who served as General Counsel prior to becoming a commissioner, said it still remains a longshot since the Supreme Court agrees to hear less than one percent of cases. But he said he sees “some unique features” to the FCC’s potential challenge that could help it secure a review.

Even if the FCC doesn’t proceed with its quest to seek a review by the Supreme Court, a separate appeal could be filed by the National Association of Broadcasters and five radio and television companies, including Bonneville, Connoisseur Media, Nexstar, News Corp., and Sinclair Broadcast Group, that have challenged the Third Circuit ruling. A spokesman said the NAB is still reviewing its options.