Challenges to Quadrennial Review Moved to 3rd Circuit

All the issues in the case are “either closely or tangentially linked” to the 2011 Prometheus Radio Project v. FCC (Prometheus II), which the 3rd Circuit decided in Prometheus' favor and retained jurisdiction over on remand, said D.C. Circuit Senior Circuit Judge Stephen Williams, who headed the merits panel that approved the venue change. “There are therefore clear economy advantages in transfer to that circuit,” Williams said. “This is just what we wanted,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who represents Prometheus. NAB and the FCC didn't comment.

Oral argument in the case had been scheduled for Dec. 3, and a decision in the case will likely be pushed back as a result of the venue change, multiple attorneys told us. It's possible the 3rd Circuit will require the parties to submit additional briefs in the case, but the judges could decide that what has already been submitted is sufficient, attorneys told us. A new oral argument could be set for February or March, Schwartzman said. Oral argument in the case had been planned to include arguments for venue change, which was seen as a sign that a venue change was unlikely. Moving a case's venue so close to oral argument is highly unusual, Fletcher Heald appellate attorney Harry Cole told us.

Because of the FCC's past defeats there, the 3rd Circuit is seen as more favorable to the public interest groups' arguments, several broadcast attorneys told us. NAB had argued that the Prometheus II issues shouldn't force the whole case to the 3rd Circuit, and attorneys told us the D.C. Circuit is seen as more skeptical of FCC ownership regulations.

Williams indicated some displeasure in his order moving the case, calling the agency's quadrennial review process “interminable.” The sprawling nature of the quadrennial review and its connection to the 3rd Circuit could lead to “a vast range of issues” that are “forever committed to one circuit, contrary to the goals of Congress in authorizing review in 12 different circuits,” Williams said. “At some point our duty to fulfill those goals may well exceed the economy advantages of persistent review in the Third Circuit, and nothing in the current order precludes a finding to that effect,” he said.

If the case had been heard in the D.C. Circuit, NAB would have had the opportunity to raise constitutional objections to the commission’s ownership rules, which the 3rd Circuit has already rejected, one attorney familiar with the case said. If the D.C. Circuit had favored those arguments, a circuit split could have been created, the attorney said. With the venue change, NAB won't be able to raise those points, the attorney said.

Prometheus' challenge to the quadrennial review and the argument for change of venue were based on the 3rd Circuit's Prometheus II ruling -- the court ruled that the FCC had to study the impact of changes to the ownership rules on minorities before relaxing ownership restrictions. Since the FCC hadn't done such studies before deciding to roll up the 2010 quadrennial review into the 2014 review, it violated the 3rd Circuit's order, said Institute for Public Representation Senior Staff Attorney Eric Null. Prometheus also argued that the commission was arbitrary and capricious to make joint sales agreements attributable but defer on shared service agreements. The FCC has enough in the record to make both attributable, Null said. NAB and broadcaster Howard Stirk Holdings have challenged the commission's decision not to complete the 2010 review, and the order making JSAs attributable. The Multicultural Media, Telecom and Internet Council is also a party in the case, challenging the FCC's closing of the review without considering a number of items on the MMTC's diversity agenda.