Last week, in separate filings, the FCC and the National Association of Broadcasters asked the United States Supreme Court to review the fall 2019 decision of the Third Circuit Court of Appeals rejecting the Commission’s 2017 effort to modernize its local media ownership rules.
You’ll recall that, in November 2017, the Commission adopted an Order on Reconsideration that modernized a number of local media ownership rules, finding them no longer justified in light of competitive conditions in the rapidly-changing media marketplace. In particular, the 2017 Order repealed or modified the Newspaper/Broadcast Cross-Ownership Rule, the Radio/Television Cross-Ownership Rule, the Local Television Ownership Rule (including the “eight voices” test and the prohibition on top-four combinations), the Local Radio Ownership Rule, and the Television Joint Sales Agreement Attribution Rule.
In September 2019, a divided three-judge panel of the Third Circuit Court of Appeals—the same panel that has overseen challenges to the Commission’s efforts to modernize the local media ownership rules for more than 15 years—vacated the Commission’s rule changes in their entirety. The panel majority found no fault with the FCC’s analysis of competitive marketplace conditions, but it concluded that the Commission had failed to “adequately consider the effect its new rules would have on ownership of broadcast media by women and racial minorities.” Since the Third Circuit’s decision took effect in November 2019, the pre- 2017 local media ownership rules have been back in effect. The means that the Newspaper/Broadcast Cross-Ownership Rule is now in play, the Local Television Ownership Rule test for a permissible television duopoly includes both the “Top 4” prohibition and the “8 voices” test, and certain television Joint Sales Agreements are “attributable,” subject to specified grandfathering relief.
Industry stakeholders have watched for the last several months as both the Commission and the National Association of Broadcasters filed requests in February and March for additional time within which to ask the U.S. Supreme Court to review the Third Circuit’s decision. The wait has come to an end. On Friday, April 17, both the Commission (via the Office of the Solicitor General) and the NAB (joined by various industry participants) filed separate cert petitions asking the Court to review the Third Circuit panel’s September 2019 decision. For more information, including why the FCC and NAB believe the Supreme Court should take this case, please follow this link.