In response to Petitions for a Writ of Certiorari of the 3rd Circuit’s decision in Prometheus IV filed by the Federal Communications Commission and the National Association of Broadcasters, the US Supreme Court on Friday, October 2, 2020 granted Certiorari.
This Supreme Court grant of Certiorari means it will review the 3rd Circuit’s decision overturning the FCC’s 2010/2014 Quadrennial Review decision which struck down the FCC’s 2017 elimination of the newspaper/broadcast and television/radio cross-ownership rules, rescission of the television “eight-voices” test for mergers, and establishment of a broadcast station incubator program allowing for an increased concentration of ownership in exchange for fostering third-party ownership diversity.
The 3rd Circuit, in striking down the ownership rule changes, held that the FCC had an obligation “to adequately consider the effect its 2017 rules would have on ownership of broadcast media by women and racial minorities.” The 3rd Circuit admonished that “the Commission cited no evidence whatsoever” on the effect of the changed rules on female ownership. With respect to broadcast station ownership by racial minorities, the 3rd Circuit stated that “the FCC’s analysis is so insubstantial that it would receive a failing grade in any introductory statistics class.”
The Supreme Court will in the coming months set schedules for briefing and oral arguments with a decision likely to be issued by next June. Given the importance of, and the potential for wide-ranging ramifications of, any Supreme Court decision, those filing briefs are likely to include participants from within and outside our broadcasting industry.
The 3rd Circuit’s Prometheus IV decision to be reviewed by the Supreme Court has an almost fanatical focus on the on the FCC’s inability to proffer concrete minority and female ownership data on the effect of its ownership rule changes, to the exclusion of all other factors the FCC is statutorily expected consider under the Quadrennial Review. For those who are following this proceeding closely and trying to forecast what the Supreme Court will do, it is well worth reading the Prometheus IV decision.
It has been speculated by industry lawyers that the Supreme Court’s review may be about administrative law, or the decade-plus length of time the ownership rule changes have been held hostage by the 3rd Circuit, or the nuts and bolts of the FCC’s ownership rules. Rather than any of these factors, however, it also may be that the Supreme Court ultimately focuses on the constitutionality of the FCC’s race- and gender-skewed policies in regulating broadcasting.
The Supreme Court, with its now conservative lean, may view the 3rd Circuit’s decision refusing to allow an FCC ownership rule change almost solely due to a lack of solid data of the effect of the rule change on minority and female ownership as an opportunity to more broadly review the constitutionality of the FCC’s current race and gender based considerations. A Supreme Court decision sharply curtailing the FCC’s ability to use race and gender considerations in formulating its policies could effect a sweeping change across numerous regulatory agencies and Federal government policymaking.
The FCC in its Petition for a Writ of Certiorari does not request any changes or curtailment to its use of race and gender considerations in decision-mailing. The FCC states that, in its 2010/2014 Quadrennial Review Decision, it addressed the potential impact of its regulatory changes on minority and female ownership and concluded that “prior relaxations of media ownership restrictions had not led to an overall decline in minority-owned stations [and that] no commenter had produced meaningful evidence showing a likely negative impact on minority and female ownership”. The FCC argues that the 3rd Circuit’s “exclusive focus on gender and racial diversity reflects a misapprehension of the statutory scheme and the substantial discretion [the statutory law] grants the FCC in regulating broadcast markets … to determine whether any of such rules are necessary in the public interest as the result of competition.” The FCC particularly complains that the 3rd Circuit improperly “treated minority and female ownership as a threshold, dispositive consideration in all FCC quadrennial-review proceedings [and in] so doing, the court effectively displaced the Commission’s traditional approach to regulating in the public interest, which emphasizes competition and viewpoint diversity while also taking into account a broad range of additional considerations, including localism and other types of diversity”.
Public interest groups including the petitioners in Prometheus IV have badgered and prodded the FCC for years to only consider ownership rule regulatory changes if minority and female populations are advantaged. If the Supreme Court bases its eventual decision on the almost exclusionary race and gender focus by the 3rd Circuit, those public interest groups could find that their litigiousness results in fewer, rather than greater, future FCC regulatory powers to combat systemic racism and misogyny.
John Garziglia is a communications attorney at Womble Bond Dickinson and can be reached at (202) 857-4455 or [email protected]