Challenges to Media Ownership Review Seen Likely to Prevail

Broadcast attorneys and public interest groups describe the 3rd U.S. Circuit Court of Appeals as “frustrated” with FCC actions on media ownership and likely to look favorably on appeals of the 2014 quadrennial review. Prometheus Radio Project filed one such appeal last week in the 3rd Circuit (see 1611040054), and NAB has said it will file another in the D.C. Circuit by Monday (see 1611070052). The Multicultural Media, Telecom and Internet Council has also said it will appeal the ownership rules.

Each of the groups challenging them wants different changes to the ownership rules. Yet they're all seen as having solid arguments against the FCC, broadcast and public interest attorneys told us. “It isn't a trifling matter” for an appeal to point out that an agency hasn't followed the court's orders, said MMTC Senior Adviser David Honig.

Public interest groups have a strong case based on the FCC choosing not to collect the data the court has said is needed to provide a basis for changes to ownership rules, United Church of Christ Office of Communication attorney Cheryl Leanza said (see 1607260054). Meanwhile, language in the 3rd Circuit's Prometheus III decision singled out the newspaper-broadcast cross-ownership (NBCO) rules, providing ammunition for NAB to argue that those rules should have been relaxed, a broadcast attorney told us. In the 2014 quadrennial review, the NBCO rules were tightened to make it harder for a broadcaster to own both a newspaper and a TV station, Pillsbury Winthrop broadcast attorney Scott Flick said. “The 3rd Circuit told the FCC to move forward, the commission's response was to leave it alone." The agency didn't comment.

NAB has said it will file in the D.C. Circuit and the case likely will enter a lottery process to determine which venue it will proceed in. Parties on all sides expect the case will end up in the 3rd Circuit, because that court expressly said it retained jurisdiction. A broadcast industry official said that even NAB won't object to the case being moved to the 3rd Circuit, because that court is seen as unfavorable to the FCC on this issue. NAB didn't comment.

The presidential election results may have presented another option to broadcasters seeking to challenge the media ownership rules, Wilkinson Barker broadcast lawyer David Oxenford said in a blog post Wednesday. A Republican-controlled FCC may see the media ownership rules differently, and NAB could pursue its appeal at the agency rather than in court, by filing for reconsideration, he wrote. Broadcasters can't do both because the court likely would wait for a recon petition at the FCC to be resolved before proceeding on a similar case in court, Fletcher Heald broadcast attorney Harry Cole told us.

That sort of switch up is seen as unlikely at the moment because it’s not clear what the FCC under Donald Trump will be like, numerous attorneys told us. Though Trump is seen as anti-regulation, he has “expressed hostility to big media companies," Oxenford said. Candidate Trump weighed in against AT&T buying Time Warner, and has had an adversarial relationship with some networks over media coverage, attorneys pointed out. That makes it unclear what the positions of an FCC under him will be, they told us. “He's expressed concerns about mainstream consolidated media,“ Leanza said. Conservatives with such concerns have aligned in the past more with groups that want to hold on to media ownership rules, she said. It's also not clear that broadcast ownership would be a high priority for that FCC, Flick said. That could lead to a petition for reconsideration being put on a back burner, he said, Trump's unknown policies are a “wild card,” Oxenford said.