When the U.S. Supreme Court hears arguments in a case that could decide the long-term fate of media ownership regulations, they may wind up hearing from not only the Acting Solicitor General on behalf of the FCC, but also attorneys from the National Association of Broadcasters.
Jeffrey Wall, the Acting Solicitor General, has filed a motion asking the Court to divide up the amount of time they have set aside to hear the appeals filed by the FCC and NAB. If the justices go along with the request, both will have 15 minutes to make their case for why the Third Circuit Court of Appeals erred when it struck down several media ownership rule changes adopted by the Commission, as well as the creation of a radio incubator program.
“We believe that dividing the argument time for petitioners between the government and industry petitioners would be of material assistance to the Court,” wrote Wall in the motion. He also said the NAB will be able to offer a “distinct perspective” from the companies that would benefit if the media ownership modifications were reinstated, telling the justices the trade group agreed to evenly split the amount of time allotted to hearing from their side during the one-hour proceeding. The Supreme Court earlier consolidated the FCC and NAB appeals into a single case.
The Supreme Court has set Jan. 19, 2021 as the date for when it will hear the challenge. The case has its roots in a 3-2 vote in November 2018 when the FCC decided to abolish the newspaper-broadcast and radio-TV cross-ownership rules, rework the radio AM-FM 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.
In their case before the Supreme Court, the FCC and NAB have argued the appeals court repeatedly overstepped its authority and for the past 17 years has prevented the agency from fulfilling the requirements under federal law that say it must review and update media ownership rules every four years. Earlier this month the FCC said in a filing with the court that this “freezes in place outdated regulations, to the detriment of broadcast markets nationwide.”
But several public interest groups challenged the moves and, in a 2-1 decision last year the Third Circuit concluded the agency had not adequately analyzed the potential effects of the regulatory changes on female and minority ownership of broadcast stations. Attorneys for Prometheus Radio, Free Press and the other advocacy group will also have a half hour to present their side to the Supreme Court during next month’s oral arguments.
The advocacy groups on Wednesday filed a brief with the Court detailing their arguments as the justices prepare to hear the case next month. The groups say the FCC and NAB are aiming to overturn the “safeguards” that limit a broadcast company from consolidating control over multiple stations and newspapers in individual local markets. Upholding those protections, they contend, will promote diversity in local broadcasting and newsgathering.
But it is the process by which the FCC came to its conclusions that may wind up deciding the case, and the advocacy groups continue to say the FCC failed to adequately consider the impact on race and gender diversity in broadcasting when it made its decision.
“The Supreme Court doesn’t need to judge the substance or need for these FCC rules, it only needs to look at the agency’s process failures,” said Free Press Vice President of Policy Matt Wood. “While professing a belief in its own duty to promote broadcast-ownership diversity, the FCC has refused to analyze the data and examine the impact media consolidation has on ownership opportunities for women and people of color.”
Wood said broadcast radio still reaches 90% of Americans even in the internet era, making it too important to allow further consolidation.