FCC, Broadcaster Prometheus Briefs Cite 3rd Circuit, Judicial Deference
Opening salvos Monday from the FCC and broadcasters in their Supreme Court appeal of the 3rd U.S. Circuit Court of Appeals Prometheus IV decision (see 2010020059) focused on showing the 3rd Circuit overreached by repeatedly knocking down FCC quadrennial reviews and retaining jurisdiction, and that the court should have deferred to the agency. The 3rd Circuit “flouts well-established principles of judicial deference to the Commission’s reasonable policy judgments” and “freezes in place” outdated rules, said the FCC brief.
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NAB and broadcasters including Connoisseur Media, Fox and Sinclair focused more on attacking the 3rd Circuit panel that has ruled against the FCC for 17 years, while the brief from the commission and U.S. Solicitor General focused on arguing the court should have deferred to the agency on whether there was sufficient data support to deregulate media ownership rules in 2017. “This is not about winning and losing the case, it’s about getting it out of the 3rd Circuit,” said University of Minnesota assistant professor-media law Christopher Terry in an interview.
Attorneys following the case differed on how the arguments will play before SCOTUS. Justices Neil Gorsuch and Brett Kavanaugh are considered opponents of judicial deference to federal agencies, and some thought that could hurt FCC arguments. However, Kavanaugh, formerly of the D.C. Circuit, is seen as supporting deregulation. Terry believes it's possible SCOTUS took the case as a vehicle to attack the concept of deference, but other attorneys said Prometheus IV isn’t well suited for that purpose.
National Association of Black Owned Broadcasters President James Winston said it's unlikely the high court would have taken the case without some interest in reversing the 3rd Circuit’s ruling in some fashion. NABOB is a party to the case on the public interest group side. The broadcaster focus on the 3rd Circuit panel could play to the political leanings of the SCOTUS conservatives, but it could also displease the court as an attack on the judiciary, one attorney said.
The 3rd Circuit faulted the FCC for failing to sufficiently consider broadcast ownership diversity when it eliminated rules such as the eight-voices test, but the law doesn't require the agency to consider diversity in its review of ownership rules, the broadcasters said. The 2-1 panel “cited no authority -- other than the panel’s own prior statements -- in support of the proposition that minority and female ownership is a required, much less a dispositive, factor,” broadcasters said. The court’s decision was also “overbroad” by also vacating the incubator order, the industry brief said.
The 3rd Circuit “far exceeded its proper role” under the Administrative Procedure Act by rejecting FCC justifications for the rule changes as “irrational” and ordering the agency to gather new empirical data to back up its rule changes, broadcasters said. The 3rd Circuit’s retention of jurisdiction “will continue to distort the Commission’s regulatory reform reviews unless corrected,” they said: SCOTUS “should direct that future challenges to the Commission’s proceedings under the statute may be filed in any court authorized by law.”
The FCC argued that, as an expert agency, its decision it had sufficiently considered ownership diversity before rolling back media ownership rules should be enough. The regulator “solicited extensive public input, reviewed voluminous record materials, and drew on its decades of regulatory experience,” it said. “By directing the FCC to conduct a particular analysis on remand, the court also improperly imposed an atextual procedural requirement on agency decision-making.”
The 3rd Circuit’s argument the FCC should be able to back up rule changes with “a high degree of empirical certainty” effectively prevents the agency from updating rules based on changes to the industries it oversees, the commission said. Not being able to update rules also keeps the FCC from gathering information, the agency said. “By preventing the FCC’s revised rules from taking effect, the panel’s decision forecloses the agency from acquiring data concerning the rules’ actual impact on minority and female ownership.”
Amicus briefs supporting the FCC position are due Monday, and briefs from the public interest group opponents are due Dec. 16. Lawyers on both sides expect oral argument in early 2021.