FCC and broadcasters pondering a Supreme challenge

The Acting Solicitor general has filed for an extension of time on behalf of the FCC as it considers whether or not to challenge the 3rd Circuit ruling on "Prometheus Radio Project v. FCC" in which most of the provisions of the FCC ownership ruling of 6/2/03 were remanded to the Commission for justification or modification. The clock is set to stop 12/2/04; the FCC wants until 1/1/05. Meanwhile, major media companies have also asked for a delay, saying they may challenge the very basis of the spectrum scarcity doctrine that has guided media ownership policies for three and a half decades.

The FCC's request is based in part on the fact that the 3rd Circuit ruling was a split decision, and the dissenting Judge Scirica is quoted. Scirica said the court "...substituted its own policy judgment for that of the Federal Communications Commission," and that "[i]t is not the role of the judiciary to second-guess the reasoned policy judgments of an administrative agency acting within the scope of its delegated authority."

The FCC says, it wants the extra time "...to permit full consideration of the practical and legal ramifications of the decision of the court of appeals, and, if a petition for certiorari is authorized, to prepare and print it."

Viacom, News Corporation and NBC Universal filed their own joint request for an extension, saying they want to consider whether to ask the high court to overturn its landmark Red Lion case from 1969. It was in that case that the Supreme Court said the FCC had authority to limit media ownership because broadcast spectrum was a scarce public resource. If the owners of CBS/UPN, Fox and NBC/Telemundo decide to go that route, they would be likely to argue that the growth of alternative media sources, such as the Internet and satellite TV, have rendered moot the scarcity argument.

RBR observation:
The FCC has a few strategic options to weigh here. The court remanded the rules back to the FCC, and while many opponents of the 6/2/03 ruling saw that as a repudiation of them, in fact, it contained no language on way or the other as to how the rules should be rewritten. In fact, they don't even have to be rewritten at all if the FCC comes up with better justification. Now that Republicans are guaranteed another four years of FCC control, they could simply proceed along the path set by the 3rd Circuit.

Meanwhile, a Supreme Court challenge could wind up exactly as the 3rd Circuit case did, with the rules simply going back to the FCC for reconsideration. That would just tack more time onto the process.

The FCC's recent history in the courts isn't pretty. You'd think they'd do as the 3rd Circuit asked. They may not like it, but at least they'd be in control of the process. To say the least, it'll be interesting to see how they decide to play it.