The Supreme Court heard Tuesday morning in a dispute arising from attempts by the Federal Communications Commission to deregulate local media ownership. After nearly an hour and a half of debate, the judges seemed inclined to keep the FCC’s efforts going – even if that wasn’t the reason major broadcasters would prefer.
FCC v Prometheus Radio Project and the National Association of Broadcasters v Prometheus Radio Project, which the court has consolidated for the hearing, focus on the 2017 FCC orders that repealed cross-ownership rules that the same company had on it prevent both a daily newspaper and either a radio or television station from owning in the same market and also restrict ownership of radio and television stations in the same market. The FCC also changed the rules that limit how many television stations a company can own in the same local market. The FCC pointed to the decline of the newspaper industry and the proliferation of other media as reasons for the change. On appeal, a divided three-judge panel of the U.S. 3rd Circuit Circuit Court of Appeals cleared the orders, with the majority believing that the FCC had not adequately considered the impact of the abolition or relaxation of ownership rules on media ownership by women and minorities.
The judges spent a significant portion of the argument Tuesday clarifying the parties’ positions on whether and in what context the FCC had previously considered how changes to media ownership rules might affect the property of women and minorities, and whether the agency it was necessary to take these effects into account. Malcolm Stewart, the U.S. assistant attorney general who represented the FCC, noted that there is nothing in Section 202 (h) of the Telecommunications Act 1996 that directs the FCC to review its media ownership rules every four years and determine if it does Because of the competition, rules are needed in the public interest, ”committed the FCC to consider the impact of its 2017 changes on media participation by minorities and women. Stewart admitted that the FCC had examined the implications of this case. it simply concluded, “on the basis of the evidence available to us,” that “the changes in ownership will not have any material effect”.
Judge Sonia Sotomayor was skeptical of Stewart’s argument that the court should postpone the FCC’s decision to deregulate media ownership. The FCC has stated that ownership diversity is a factor to be considered in deciding on deregulation, Sotomayor noted, and the court has “a legion of cases that state” an agency must be taken into account before dismissing a position can, “must be given due consideration”. ”
However, Sotomayor’s colleagues showed more understanding of the government’s position. In his questions to Ruthanne Deutsch, who represented the advocacy groups contesting the FCC’s orders, Chief Justice John Roberts urged the groups’ claims that the FCC must provide a detailed explanation of its changes to media ownership rules. If the FCC has two different priorities and is focused on one, Roberts said in German, “You seem to be proposing this for political reasons,” it has to “justify a statement that A is more important than B if it is reasonable, people can get into it differentiate. “
Judge Elena Kagan had a similar series of questions for Deutsch. If in the past the FCC has looked at ownership diversity as a factor in their broader analysis of whether maintaining the media ownership rules would serve the public interest, but in this case the FCC says the little data available suggests that the changes in their rules won. ‘Kagan had no impact on women’s and minority property, asking, “Why is that not enough?”
Judge Neil Gorsuch followed suit, noting that the FCC and broadcasters “adhered to rules from the 1970s that were out of date 20 years ago, 25 years ago, according to Congress”. Indeed, if, to the best of its ability, after several rounds of investigation and several rounds of data collection and public comment, the FCC is convinced that these rules will not adversely affect anyone, it could actually benefit most people. why shouldn’t it be allowed to “experiment with it for four years” and then “see what actually happened”?
Judge Brett Kavanaugh stepped in, noting that federal courts are not making “political appeals”. “We are generally shifting to regulatory decisions within the constraints imposed by Congress,” stated Kavanaugh, and in this case, Congress directed the FCC to work in the “public interest” – “the widest possible language” and “not much of” any limitation at all “at the discretion of the FCC. “How can we sit here,” concluded Kavanaugh, “guess it all again?”
Justice Amy Coney Barrett was skeptical of Deutsch’s quote on a study that Deutsch said would support groups’ claims that changes to property rules would harm minority and women’s property. “I thought,” said Barrett, “that the study” was largely backward-looking. “And if so,” continued Barrett, “why is the Commission wrong that there is no evidence in the records that the damage would cause harm”?
Attorney Helgi Walker advocated a trade association of television and radio broadcasters and asked the court to uphold the FCC’s changes to media ownership rules. However, she offered the court another reason to do so. In Walker’s view, the 3rd Circuit decision was wrong because nothing in the text of Section 202 (h) indicates that the FCC was required to consider the impact of its changes on property diversity. Walker backed out of Sotomayor’s suggestion that a decision based on the text of Section 202 (h) would be more complicated than a decision postponing the FCC’s interpretation of the law, and stressed that broadcasters were seeking clarification from the court of section 202 (h) does not specifically require or require because the dispute has continued for so long. Otherwise the litigation will continue after the next periodic review. Congress intended in section 202 (h) to “drive real reforms focused on competition,” she told judges, instead broadcasters were “workers”[ing] according to these rules, which literally go back to the 1940s ”, as opposed to“ completely unregulated ”new media.
Gorsuch also focused on a separate topic: whether the 3rd circuit should have control of this case and previous challenges to the FCC orders after other periodic reviews. Which authority, asked Gorsuch doubtfully, does the 3rd circuit have to be responsible for three different sets of rules over a period of 15 years?
Sotomayor also urged Walker to draw a line on when or not the appellate courts should keep jurisdiction over a complex case. Walker replied that the case was easy because a scenario in which a body was in control of the FCC’s rulemaking for 17 years was “exaggerated in all respects”.
Although the court would likely rule in favor of the FCC after a hearing and reinstate the 2017 orders, the FCC – which will soon be under Democratic control – is in the midst of the 2018 periodic review required under Section 202 (h) this scenario could be followed by more litigation as to the exact outcome that broadcasters hope to avoid.
This article was originally published by Howe on the Court.
Amy Howe, Argument Analysis: Judges Agreeing with FCC in Media Ownership Dispute,
SCOTUSblog (January 19, 2021, 6:53 p.m.), https://www.scotusblog.com/2021/01/argument-analysis-justices-sympathetic-to-fcc-in-media-ownership-dispute/