FCC and Industry Groups Ask for Supreme Court Review of Third Circuit Ownership Decision

On Friday, the FCC (with the Department of Justice) and a group of interested media industry companies filed requests asking that the Supreme Court review the decision of the Third Circuit overturning the FCC’s 2017 decision on its ownership rules (the FCC petition for a writ of certiorari is available here).  The FCC’s 2017 decision abolished the newspaper/broadcast and radio/television cross-ownership rules, and made changes to the local television rule and other ownership rules (see our post here on the 2017 decision).  Last September, a three-judge panel of the Third Circuit overturned the rule changes, not necessarily disagreeing that times had changed and that the new media marketplace justified a relaxation in the ownership rules, but instead finding that the FCC had not done an adequate job in assessing the impact of the rule changes on minorities and other potential new entrants to the broadcast industry (see our article here on the court’s decision).

After the court’s decision, the FCC and the interested industry parties sought review by all of the judges on the Third Circuit of the decision made by the three-judge panel, a review that was denied last year (see our article here).  That led to the FCC’s order immediately before Christmas, reinstating the pre-2017 rules and requiring that broadcasters comply with those rules when filing new applications (see our article here).

The request for Supreme Court review now asks that the Court overturn the Third Circuit’s decision citing, among other things, that the same three-judge panel has three times over a 17-year period rejected FCC attempts to change the ownership rules to reflect current industry conditions so that those rules can better serve the public interest, as required by the statute.  Instead, the majority of the three-judge panel has been so focused on the single factor of whether the FCC had done sufficient historical analysis of minority ownership to justify its decision – second-guessing the FCC’s analysis of that factor and minimizing the importance of all other justifications for a change in the rules.  The argument is that this single panel of judges should not be allowed to frustrate the FCC’s attempts to modernize the ownership rules.  What happens next?

The public interest groups that have opposed changes in the ownership rules can oppose the request for review by the Supreme Court.  Other interested parties can argue in support of the review as well.  If the Court decides that the case merits further consideration (which is discretionary by the Court, as it hears only about 100 cases each year while getting thousands of requests to review decisions of lower courts), the parties will need to file additional briefs and orally argue the decision before the Justices.  At best, we would be looking at a decision in 2021 – if the Court decides to hear the case at all.  Until then, absent intervention from Congress, significant changes in the FCC’s ownership rules are likely on hold.

Courtesy Broadcast Law Blog