Address Ownership in 2018 QR, Not at SCOTUS, Say Respondents
The Supreme Court doesn’t need to intervene in FCC ownership rules because the ongoing 2018 quadrennial review is a mechanism for updating them, wrote respondents Tuesday to the agency’s attempted appeal of the 3rd U.S. Circuit Court of Appeals’ Prometheus IV (see 2005260052). “The sky will not fall if this Court allows the Commission to do its job without weighing in,” said respondents including Prometheus Radio Project, Free Press, Common Cause and the National Association of Broadcast Employees and Technicians-Communications Workers of America. By “looking in the rearview mirror,” further judicial review “might only make matters worse,” the filing said.
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The broadcast industry and FCC views evolve over time and the QR “is designed to account for that evolution,” the groups said, arguing the process hasn’t obstructed action as the agency and broadcasters say it has. Four years ago, the FCC -- under then Chairman Tom Wheeler -- concluded that broadcast local ownership rules were justified, the organizations said. “That the FCC reached the contrary conclusion in 2017 is hardly a decades-long freezing of rules that the agency has long wanted to jettison, as the Government would have it.”
The argument isn’t unexpected, attorneys on both sides said. Entities opposing a cert petition traditionally try to show there’s no reason for SCOTUS to get involved, a broadcast lawyer said. Opinions vary about how likely the court is to take up the matter; one broadcast attorney put the odds at “50-50” but said a SCOTUS decision to get involved would signal that petitioners are likely to lose. “I don’t see an issue that’s Supreme Court worthy,” said University of Minnesota School of Journalism assistant professor-media law Christopher Terry, who was cited by respondents' brief.
The filing countered broadcaster arguments that 3rd Circuit retention of the case over multiple iterations merits SCOTUS intervention. “The judicial housekeeping in this case accords with established practice,” said the filing. The 3rd Circuit hasn’t deterred other courts from making decisions, the filing said. “If a case filed in the D.C. (or another) Circuit did not fall within the scope of the remand, no court would transfer it only for the sake of ‘conce[ding] to the panel’s asserted power.'”
Broadcaster arguments the 3rd Circuit wrongly imposed consideration of ownership diversity on the FCC should be rejected, the groups said. “An unbroken line of agency rulings, reaffirmed by judicial decisions, confirms that diversity is an entrenched part of the ‘public interest.’” The FCC explicitly endorsed ownership diversity as a goal in the 2016 QR order under Wheeler and in the reconsideration order rolling back ownership rules under Chairman Ajit Pai, respondents said.
The petitioners -- the FCC and NAB -- have an opportunity to respond, and then the wait for a cert decision begins, lawyers noted. A decision is expected in late September or early October. If the case is taken up, it likely wouldn’t be argued until after the presidential election, raising the possibility of government reversing its position if a new administration takes over.