FCC Appeals 3rd Circuit Ruling to SCOTUS

“Absent further action by the Supreme Court, broadcasters will continue to be saddled with outdated regulations,” said FCC Chairman Ajit Pai. “It’s unfortunate that the same divided panel of the Third Circuit yet again has blocked the Commission’s efforts to modernize our media ownership rules.”

Seeking review is a “horrendous decision of Trump’s Solicitor General,” tweeted Common Cause's Michael Copps, ex-Democratic commissioner. “FCC majority continues to thumb nose at Third Circuit and now SG joins against public interest. Another late Friday afternoon news dump. For shame!”

The panel’s “consistent retention of jurisdiction ... effectively thwarted review of the FCC’s quadrennial ownership proceedings by any other court of appeals,” said the petition. The government argued the panel’s rulings are incorrect under the law and that the FCC fulfilled the 3rd Circuit’s data requirements. Academics and broadcast attorneys we spoke to differed on the case’s chances to be heard by SCOTUS. University of Minnesota School of Journalism assistant professor-media law Christopher Terry said that attacking the panel’s jurisdiction is “the best argument the FCC can make, given the facts.”

The pattern of Judges Thomas Ambro and Julio Fuentes voting to remand and vacate QR orders has gone on for four iterations, over a decade and a half, FCC/SC said. Anthony Scirica has dissented in all four rulings. “Who put two unelected judges in charge of media policy forever?” asked Gray Television Deputy General Counsel Robert Folliard. The panel’s retention of the case prevented the QR from working as intended by Congress, the government said. “For 17 years ... the panel below has prevented the FCC from repealing outdated rules that even the panel recognized no longer serve their original purposes.”

Most cert petitions aren’t granted. Attorneys and academics told us those from federal agencies, backed by the SG, are believed to have a slight leg up. Cases involving a circuit split are widely seen as having a better chance to be taken up, but that’s impossible here because the 3rd Circuit kept jurisdiction, the government said. The panel has “deterred other courts of appeals from reviewing" cross-ownership rules and petitions for review filed in other circuits have been “consistently transferred to the Third Circuit,” the petition said.

Getting the case sent from the 3rd Circuit has been a goal for the FCC and broadcasters throughout this process, Terry said. The agency was widely expected to lose in the 3rd Circuit even before the case was heard, he noted. The FCC and broadcasters have a better chance to win in the U.S. Court of Appeals for the D.C. Circuit, and battled in court to have prior Prometheus cases transferred there, he said.

Opinions differ on how receptive SCOTUS will be to arguments over jurisdiction and judicial deference. The high ourt tends to favor constitutional issues over procedural ones, Terry said, conceding that’s not always so: the landmark Citizen’s United case concerned procedural election rules. Folliard said the national scope of the issue of media ownership could make it attractive to the court. The 3rd Circuit panel wielding “unreviewable” power “that ought to belong to Congress” should concern SCOTUS, he said. United Church of Christ attorney Cheryl Leanza, who represented Prometheus before the 3rd Circuit, didn’t comment.

The lower court vacated portions of rules that weren’t explicitly challenged by parties, FCC/SC said. The panel “compounded its analytic errors with a dramatically overbroad remedy,” they said. Portions of the eligible entity definition and broadcast incubator program weren’t challenged, but both were vacated in full, they noted.

The government blamed the 3rd Circuit’s rulings for preventing it from fulfilling the court’s orders that the agency collect data on diversity in broadcast ownership. “If the panel had allowed the agency’s revised" cross-ownership rules "to take effect, the Commission would now be in a far better position to assess the effects of those rules on female and minority ownership,” the filing said. The panel’s rejection of the data presented by the FCC -- the majority opinion said the commission would fail a statistics class -- showed “a fundamental misunderstanding of the principles that govern judicial review of agency action,” the petition said: The Administrative Procedure Act "does not require perfect data, especially on points ancillary to an agency’s primary task.”

The petition from NAB and broadcasters including Fox, Nexstar and Sinclair faulted the 3rd Circuit for not following congressional intent. “Despite the statute’s explicit focus on competition,” the panel vacated agency orders “for not sufficiently examining the potential effect of its rule changes on minority and female ownership, a subject not mentioned anywhere in the statutory text,” said the broadcaster petition. Since the changes to ownership rules were competition- and market-based, the court was wrong in its “atextual judicial supplementation,” the petition said. The News Media Alliance also signed on.

The 3rd Circuit “has never identified a statutory basis for the dispositive importance it has repeatedly placed on ownership diversity,” the broadcast allies said. “Rather, during each successive review, the Third Circuit has removed its discussion of ownership diversity further and further from any statutory command.”

Hear the case because the panel’s decisions created a “regulatory straightjacket” that harms broadcasters and newspapers, the petition said. “This Court’s review is more than warranted now; it is badly needed for there to be any hope of allowing the FCC to modernize its ownership rules.”