3rd Circuit Citing Past Ruling Called Bad Omen for FCC in Tuesday Oral Argument
The 3rd U.S. Circuit Court of Appeals told the FCC and several parties challenging ownership rules that they should study in advance of Tuesday's oral argument in Philadelphia the case Public Citizen v. Chao, in which the 3rd Circuit previously ruled against a federal agency for delaying a rulemaking that had been ordered by the court. Prometheus Radio v. FCC (formerly Howard Stirk v. FCC) includes arguments that the FCC ignored the orders of the 3rd Circuit by failing to complete the 2010 quadrennial review or do studies on minority ownership (see 1511240060). The 3rd Circuit's raising of the Public Citizen case shortly before oral argument is seen as a bad omen for the FCC, numerous attorneys familiar with the case told us. The FCC has twice lost similar cases 2-1 against some of the same plaintiffs in front of the same panel of judges they will see Tuesday.
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The 2002 Public Citizen case concerned an Occupational Safety and Health Administration rulemaking on workplace exposure standards for the carcinogen hexavalent chromium that hadn't been initiated nine years after the agency promised to do so, according to court documents. The 3rd Circuit said the delay was unreasonable and unjustified, and compelled OSHA to begin a rulemaking. Since the current Prometheus case was still in the D.C. Circuit when it was briefed, those briefings were written with D.C. Circuit judges and precedents in mind, Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman told us. If the plaintiffs had known the case would be in the 3rd Circuit, Public Citizen v. Chao would have been the case they based their arguments on, he said. Even though the case's inclusion is seen as a bad sign for the FCC by attorneys familiar with the case, the FCC will likely have the chance to argue the precedent set in Public Citizen doesn't apply to the commission, attorneys told us.
The Prometheus case was identified as Howard Stirk v. FCC, but the 3rd Circuit changed the name of the case in a letter issued in March. The name change puts the case in line with the other two Prometheus cases “in light of this long history and in the interest of continuity,” the letter said. The court's making the effort to brand this case as next in the progression of ownership cases that have gone against the commission is another bad sign for the FCC, several attorneys told us.
Oral argument Tuesday will be divided among the many plaintiffs, who aren't precisely all arguing on the same side. Prometheus Radio Project's challenge is based on the argument the FCC violated the 3rd Circuit's remand from Prometheus II by not doing studies of minority ownership before rolling up the 2010 quadrennial review into the 2014 review. Prometheus wants the court to grant a writ of mandamus that would require the completion of the 2010 review and the minority ownership studies. Prometheus also argued the FCC was arbitrary and capricious in not changing the attribution rules for shared service agreements (SSAs) at the same time it addressed joint sales agreements. Prometheus will get 15 minutes during oral argument, said Institute for Public Representation Senior Staff Attorney Eric Null, who represents Prometheus.
NAB challenged the commission's handling of the 2010 review and argued the commission doesn't have the authority to change the attribution of joint sales agreements, and will have seven minutes to argue its case. Broadcasters Nexstar and Howard Stirk Holdings more narrowly challenged the JSA attribution ruleand will have eight minutes to make their case. The FCC will have half an hour. The Multicultural Media, Telecom and Internet Council filed as an intervenor, challenging the FCC's closing of the review without considering some items on the MMTC's diversity agenda. Broadcast attorneys told us the case isn't expected to go in broadcasters' favor because of the venue, but other than SSA attribution, they have comparatively little to lose. The FCC could find itself required to complete the earlier review and revisit SSAs. The commission is expected to take up the 2010 quadrennial review in June, FCC officials have said.
The panel hearing the case is the same as the other Prometheus cases, which were all decided 2-1. Judge Thomas Ambro wrote the majority opinion in the previous two cases and, like Judge Julio Fuentes, is seen as sympathetic to Prometheus and the issue of minority broadcast ownership, Schwartzman told us. Anthony Scirica dissented in the previous two cases, but could side with the other judges this time if the court buys the argument the FCC flouted the court's orders, Schwartzman said.