Broadcasters, Newspaper Owners Ask Court to Rehear Media Ownership Rules
More judges on the 3rd U.S. Circuit Court of Appeals should hear challenges to the FCC’s ownership rules remanded in its Prometheus Radio Project v. FCC decision, said a group of broadcasters and newspaper owners in a petition for an en banc rehearing filed with the court late Monday. In a 2-1 decision in July, a three-judge panel sent back to the FCC several rules that would have relaxed restrictions on the cross-ownership of local broadcast and daily newspaper assets in the same market (CD July 8 p3). The group includes Fox, Tribune, CBS, NAB, Newspaper Association of America, Belo, Morris Communications and Clear Channel. It said the panel’s decision goes against the court’s Administrative Procedure Act precedents and also undermines the 1996 Telecom Act by stymieing Congress’ intent to have the FCC regularly update its ownership rules. Critics of media consolidation said the petition will probably fail.
"The panel’s new vacatur, remand and retention of jurisdiction … keep the industry in an intolerable limbo that has now lasted a decade, with no realistic end in sight,” the petition for an en banc hearing said. “The media marketplace has changed dramatically since the 1990s, and yet this panel’s actions have effectively frozen in place an FCC regulatory regime that has failed to keep pace with those rapid changes.”
The petitioners invoked the First Amendment. “What makes this delay completely intolerable is that these restrictions on ownership implicate important First Amendment Issues,” the petition said. “Any delay that infringes on the First Amendment is unacceptable; an interminable delay demands the attention of this Court en banc.” At the very least, the court should grant a limited rehearing “to make clear -- as Judge [Anthony] Scirica argued in dissent -- that future cases need not be referred to the Prometheus panel.” The question of whether the same panel’s repeated remands of the rules and potentially exclusive jurisdiction over future FCC ownership proceedings violates the law is one of “exceptional importance,” the petition said. Some media companies that had been involved in the case didn’t sign on the petition, including Gannett, which didn’t immediately respond to our query for comment.
Some broadcasters are more focused on other elements of the FCC’s ownership rules and its upcoming quadrennial review proceeding, said Jonathan Blake, an attorney with Covington who represents smaller market broadcasters on the matter. “We've never focused on anything other than the duopoly rule, and given the nature of the court proceeding and the fact that the quadrennial review rulemaking should be coming down in the next quarter or so, that seems to be the better place to devote our energies,” he said.
The petition will probably fail, said opponents of eliminating the newspaper-broadcast cross-ownership ban. “I think this one has very little merit, but in any event the likelihood of success in any rehearing petition is very low,” said Andrew Schwartzman, policy director for the Media Access Project. The move could also foreshadow media companies’ intent to petition U.S. Supreme Court for a writ of certiorari, but that too would probably fail, said Free Press Policy Counsel Corie Wright. “The Supreme Court didn’t bite the last time around and if anything the case is less cert-worthy this time,” Wright said. And it’s doubtful the petition will hold up the FCC’s work on its latest quadrennial review of its ownership rules, Wright and Schwartzman said. “Now that the Commission appears to be working in earnest on the NPRM, I doubt that this or any rehearing petition would affect the timing of the proceeding,” Schwartzman said.