Challengers to FCC's Prometheus Appeal Cite Media Consolidation, APA
Challengers to the FCC's attempt to loosen broadcast ownership rules cited the harms of media consolidation and ways the FCC fell short of administrative law, in Prometheus IV amicus briefs filed Wednesday with the Supreme Court. Christopher Terry, University of Minnesota assistant professor-media law, told us there are social issues of broadcast ownership diversity tied to the case, but at its heart, it's a procedural administrative law case, which the respondent amicus briefs delved into more than petitioner amicus briefs (see 2011230064). The FCC didn't comment.
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Backing the 3rd U.S. Circuit Court of Appeals finding that the FCC's analysis on racial diversity on broadcast ownership was grossly anemic, 10 House Democrats said Congress and SCOTUS "have long recognized the importance of broadcast media and that maintaining diversity in broadcast media ownership is essential to serving the public interest." They said the plain language of the Telecommunications Act requires the FCC to determine if a regulation promotes broadcast media ownership diversity because maintaining that is essential to the public interest. Arguments that the act requires consideration of competition alone in its public interest analysis are "atextual," the legislators said. Signers were Yvette Clarke of New York; Tony Cardenas, Anna Eshoo and Jerry McNerney of California; Kathy Castor of Florida; Mike Doyle of Pennsylvania; Dave Loebsack of Iowa; Frank Pallone of New Jersey; Peter Welch of Vermont; and Marc Veasey of Texas.
Loosening ownership rules "threatens to further diminish the important role local news plays in informing, engaging, and connecting" citizens, said Washington, D.C., and 22 states. They said media consolidation hurt local news, which in turn hurts states and localities. Joining D.C. in the brief were California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington.
Contrary to FCC arguments, the 3rd Circuit didn't give too much weight to the goal of promoting diverse ownership because the commission itself defined the public interest as including ownership diversity, said Public Citizen. It also dismissed arguments that those who support the original rule bear the burden of justifying its existence, and the Administrative Procedure Act puts the burden on those seeking a rule change, not on those seeking to keep the status quo.
The FCC had no rational reason for not considering the effect on broadcast ownership diversity of loosening ownership rules, said Public Knowledge. It said if the commission wasn't sure what effect the broadcast repack would have on ownership diversity, it should have maintained the rules' status quo instead of encouraging consolidation by practically eliminating the rules.
The FCC has ignored the ongoing reduction in media competition for years and is trying to deregulate without justifying its proposal, a group of media policy and law scholars said. They said deregulation hurts access to important broadcast content and doesn't provide a good equivalent or alternative. The Leadership Conference on Civil and Human Rights, American Federation of Teachers, National Consumer Law Center and other public interest groups said FCC complaints about a lack of empirical data are "a problem of the FCC’s own making" by failing to collect and analyze such data.
University of Minnesota's Terry told us if SCOTUS makes a narrow administrative law decision, the FCC will lose the appeal, though if the court opts for an expansive decision that delves into issues of deference to expert agencies, the outcome "is a roll of the dice." He said the court likely won't rule on the FCC appeal until late term because several justices are interested in administrative law, but they don't agree on deference issues.