FCC Media Ownership Order Called Ripe for Court Challenge

Some parts of the FCC media ownership order are seen as more vulnerable than others, broadcast and public interest attorneys and former commission officials told us Monday. FCC justification for a revenue-based eligible entity standard (see 1608250063) is on firmer ground than its justifications for retaining most of its broadcast ownership rules, numerous broadcast attorneys said. There’s room for arguments against many aspects of the order, and court challenges and a return to the 3rd U.S. Circuit Court of Appeals (see 1605250073) are seen as extremely likely, lawyers said.

The agency kept broadcast ownership rules largely unchanged, saying the record showed the best way to ”promote competition and a diversity of viewpoints in local markets” is to keep the rules. To justify that, the media ownership rule doesn’t fully acknowledge the internet's role in news reporting and as a forum for community discussion, attorneys and a former FCC official said. The order acknowledges that newspapers and broadcasters can perform those functions, but downplays the internet’s role in disseminating information, they said. That could provide grounds for challenging the decision, lawyers said. FCC arguments for retaining ownership rules are “filled with inconsistencies” and “have little record support,” Wilkinson Barker broadcast lawyer David Oxenford said. The record in the order backing up the decision is thin, especially on newspaper/broadcast cross ownership, said industry lawyers. The FCC had no comment.

On diversity, the FCC stance is seen as stronger, numerous attorneys said. The FCC justified a revenue-based definition of an eligible entity by arguing that it doesn’t have the evidence to back up doing anything else, and it will be hard for likely public interest challengers of this aspect of the order to show otherwise, several broadcast attorneys said. It’s as though both the ownership rules and the diversity sections of the order are based on a thin record, but the FCC acknowledged that lack of evidence only in the diversity sections of the order, Fletcher Heald broadcast attorney Dan Kirkpatrick said. Arguments in a court battle over the diversity sections of the order likely will concentrate on the nature of the 3rd Circuit’s directive in Prometheus III, attorneys told us. Though the FCC took little action, it can argue that the record supported that course, Kirkpatrick said.

Experts are divided about whether a commission study of Hispanic broadcasting gives the agency ample leeway to tell the 3rd Circuit it did the required studies. Cheryl Leanza, who represents the United Church of Christ Office of Communications, said the regulator “can’t point to an irrelevant study” as evidence it followed the court’s directive. “It needs to conduct a relevant study” Leanza said. She believes the case will end up back with the 3rd Circuit, and doesn't think the court will be surprised. "The court's opinion indicates it expected further litigation," she said.