‘En Banc’ Rebuffed, SCOTUS Likely To Decide FCC Rule Rewrite

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WASHINGTON, D.C. — With not a Commissioner in sight and some of the nation’s top radio and television broadcast industry leaders seated in the very room where November’s Open Meeting will convene Friday, the FCC was handed an expected denial of a request that would have seen a wider appellate review of its revised media cross-ownership rules.


What does this mean? The FCC has one chance to stick it to a Sept. 23 decision by the Third Circuit Federal Appeals Court to rework its rule “modernization” order: Go to the Supreme Court.

Persons close to the matter told RBR+TVBR that such a move is very likely to happen.

Late Wednesday, Circuit Judge Thomas Ambro released a brief statement, written with much Legaleze, wrote, “the petitions for rehearing by the panel and the Court en banc are
denied.”

This confirms a widely held belief among D.C. communications attorneys present at the radio industry “current and future trends” symposium on Thursday morning that appellate judges involved in the request wouldn’t overrule their brethren.

What does does the NAB have to say on the Third Circuit’s decision not to conduct an en banc review of its 2-1 decision blocking FCC media ownership modernization?

“NAB is extremely disappointed with the Third Circuit decision and we are reviewing our options,” EVP/Communications Dennis Wharton told RBR+TVBR at the FCC on Thursday.


The November 2017 Order as written allowed for the following rule changes. The Sept. 23 Third Circuit ruling effectively tells the FCC to redo these rules:

  • Eliminates the Newspaper/Broadcast Cross-Ownership Rule. The GOP majority says it is no longer necessary to promote viewpoint diversity and prevented combinations that would enable both broadcasters and newspapers to better serve the public interest.
  • Eliminates the Radio/Television Cross-Ownership Rule. Republicans say this is also no longer needed to promote viewpoint diversity in the modern media marketplace.
  • Removes the “Eight-Voices Test” from the Local Television Ownership Rule. Instead, the Commission will use a potentially Media Bureau-clogging “case-by-case review option in the Top-Four Prohibition to better reflect the competitive conditions in local markets.”
  • Erases the attribution rule for television JSAs. Why? The GOP leadership at the FCC believes they are “beneficial agreements that serve the public interest by allowing television broadcasters to better serve their local markets.”
  • Keeps the disclosure requirement for Shared Services Agreements involving commercial television stations.
  • Sees the FCC’s largely welcomed adoption of an incubator program allowing multicultural owners to seek opportunities. The NPRM sought comment on how the Media Bureau should structure the incubator program.

To view the petition in Prometheus Radio Project v. FCC, please click here.

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