D.C. Circuit Should Transfer Quadrennial Challenges to 3rd Circuit, FCC Says
The U.S. Court of Appeals for the D.C. Circuit should transfer all challenges against the FCC 2014 quadrennial review rulemaking and the rule increasing attribution of joint sales agreements (JSAs) to the 3rd U.S. Circuit Court of Appeals or dismiss them, said the FCC in a brief filed Thursday in case 14-1090. Though Prometheus Radio Project and others in the case also have asked for the 3rd Circuit venue change, NAB said the case should be heard in D.C. The D.C. Circuit asked the parties to argue both the venue change and the merits of the case. As of a briefing schedule change earlier this month, final briefs in the case are due Aug. 27, with oral argument expected to be scheduled in the fall, said attorneys following the case.
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The case should be transferred to the 3rd Circuit because it has experience dealing with issues of the quadrennial review and media ownership, the FCC said. “The cases involve review of an order entered after remand from the Third Circuit in Prometheus II, a case in which that court expressly retained jurisdiction." Prometheus Radio Project and other public interest parties in the case challenging the quadrennial review proceeding also asked for the venue change, while NAB and broadcasters Howard Stirk Holdings and Nexstar said the case should stay in D.C. Those issues “should not be the tail that wags the dog of venue,” NAB said in a motion against the venue change.
Part of NAB's challenge is against the new JSA rules, which aren't directly related to the 3rd Circuit's remand. The 3rd Circuit heard a previous challenge to the radio JSA attribution rules, so it's also familiar with that issue, argued the FCC in Thursday's brief.
The court's order that the venue change be argued along with the merits of the case in briefings and oral argument is seen as an indication the venue will remain in D.C., a broadcast lawyer said. That's impossible to know for sure, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who represents Prometheus. The court has yet to rule on a motion from Prometheus asking for oral argument on the venue question be held separately ahead of the rest of the case, Schwartzman pointed out.
NAB said the FCC doesn't have authority to change the attribution of JSAs without completing the congressionally mandated review of ownership rules that was the 2010 quadrennial review. The attribution rules are separate from the ownership rules and fall under the agency's “broad discretion,” the FCC said in Thursday's filing. NAB's argument is also barred from being considered by the court because it wasn't originally raised to the FCC, the commission said.
Prometheus said the agency should have extended the attribution rule to shared service agreements. “Prometheus offers no basis to dispute the Commission’s judgment that it needed more information about the content of such agreements and the frequency of their use before taking any final action,” the FCC said.
Challenges to the quadrennial review proceeding don't fall under the court's jurisdiction because that review isn't finished and isn't a reviewable final action, the FCC said. Prometheus had argued that the commission erred by closing the 2010 review without gathering information on minority ownership as ordered by the 3rd Circuit, but the FCC said the review continues.