And now we wait. It took 17 years for the issue of media ownership to make its way to The Supreme Court, and, according to attorney Helgi Walker, representing the NAB, it was 17 years of litigation where the Third Circuit was distorting the statute the entire time and a course correction is badly needed.
Congress mandates The FCC look at Media Ownership rules every 4 years and make changes, if needed, to determine whether the rules on the books remain “necessary in the public interest as the result of competition.” The agency is required to review the rules as a result of The 1996 Telecommunications Act. Nobody would argue that the competitive landscape has remained the same since 1996 yet the FCC has been stymied from updating its rules for nearly two decades by the Third Circuit.
Why we’re here now. In 2017 The FCC repealed the ban on owning a television station and newspaper in the same market, and a similar rule for owning TV and radio stations.
The FCC argues that it was simply doing the job it’s required to do as mandated by Congress and the Third Circuit is interfering.
Prometheus Radio Project, a collection of low-power radio stations is fighting the FCC’s plans to modernize the rules. They’ve been arguing that The FCC’s changes would adversely impact female and minority ownership. Both the NAB and DOJ’s Deputy Solicitor General Malcolm Stewart argued that there’s no evidence that would be the case, and, that doesn’t even need to be considered when the rules are modernized.
Walker argued that all that mattered was that The FCC determined the rules were no longer in the public interest. “Here, the Commission’s statutorily required findings that the rules are no longer in the public interest as a result of competition are unchallenged. Yet, the Third Circuit vacated the order because The Commission failed to adequately consider minority and female ownership. The statute does not say one word about that issue. The FCC properly did the job Congress gave it. That is what matters and the order can and should be upheld on that ground.”
Walker, responding to a question from Supreme Court Justice Samuel Alito, said, “Amazon gets to own The Washington Post today. Nobody thinks that’s the end of democracy. It’s surely not the end of democracy if a local broadcaster can buy a local newspaper and keep it alive.”
It was also pointed out that digital platforms that are all the rage in society these days go largely unregulated as broadcasters continue to operate under rules dating back 25 years or more. Walker argued that “makes no sense and is extremely unfair as a competitive matter, which is why the Commission reasonably decided to free broadcasters of these archaic rules.”
Walker said the Commission has consistently relied on three public interest rationales for media ownership rules: viewpoint diversity, localism and competition. “We think those are appropriate factors, but on our proffered reading of the public interest in this statute, we don’t think the Commission or commenters can draw and brand new rationales as an excuse to keep outdated rules or, worse, to make more rules. That turns the statute completely upside down.”
It could be months before The Court ruels on the issue. Broadcast attorney Frank Montero: “If the Supremes uphold the Third Circuit, I don’t think there’s any way The FCC could fix the problems the Third Circuit found, since they have now argued they don’t have the data to do so. If the Third Circuit is upheld, I think they probably basically just start over.”