The Supreme Court held a hearing on Tuesday morning in a dispute resulting 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.
The FCC v Prometheus Radio Project and the National Association of Broadcasters v Prometheus Radio Project, which the court consolidated for the hearing, focus on the 2017 FCC orders that repealed cross-ownership rules that the same company had on it prevent both a daily newspaper and either a radio or television station from owning in the same market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 a majority believing the FCC had failed to adequately consider the impact of the abolition or relaxation of ownership rules on media ownership by women and minorities.
The judges spent a significant part of the argument Tuesday clarifying the parties’ positions on whether and in what context the FCC had previously considered how changes in 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 directing the FCC to review its media ownership rules every four years to determine if it does Due to the competition, rules are required 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 the case. it simply concluded, “based on the evidence available to us,” that “the changes in ownership will not have a material impact”.
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 consider when deciding whether to deregulate, Sotomayor noted, and the court has “a legion of cases that” require an agency to refuse a position before they can 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. When the FCC has two different priorities and decides to focus on one, Roberts said in German, “They seem to be proposing this for political reasons” to justify a statement that A is more important than B if it is reasonable, as people can differ in this. “
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, then 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’re generally shifting to regulatory decisions within the constraints imposed by Congress,” noted Kavanaugh, and in this case, Congress instructed 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 the groups’ claim that changes in property rules would affect minority and female property. “I thought,” said Barrett, “that the study” was largely backward. “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 for 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 based on the FCC’s interpretation of the law, and stressed that broadcasters had to be judged by the court clarification of section 202 (h) requires or does not require precise clarification because the dispute has continued for so long. Otherwise the litigation will continue after the next periodic review. Congress intended to “drive real reforms with a focus on competition” in section 202 (h), she told judges, but 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 be in control of this case and previous challenges to the FCC orders after other periodic reviews. What authority, asked Gorsuch Deutsch 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 the appellate courts should or should not retain 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 the 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 lead to further litigation as to what exactly would be the 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/