Just after 10am Eastern on Friday, one of the biggest announcements in recent memory regarding the future of broadcast media was confirmed by the Chairman of the FCC himself. The Supreme Court has granted certiorari in FCC vs. Prometheus. This puts the matter of ownership rule modernizaton in the hands of the nation’s highest legal body.
News of the highly significant decision by the U.S. Supreme Court to hear the case, which some in the Washington legal community considered a gamble by the Commission, was warmly greeted by FCC Chairman Ajit Pai on Twitter.
“Hope #SCOTUS affirms authority Congress gave us to amend ownership rules in light of a media marketplace that’s changed dramatically since 1975—especially with local news outlets struggling more than ever,” he wrote.
In a statement released later in the day, Pai added, “I am very pleased that the Supreme Court has agreed to review the Third Circuit’s Prometheus decision, which vacated the FCC’s long-overdue reforms of its media ownership rules. This is a breakthrough: a real chance to finally have media ownership rules that better match today’s realities. For seventeen years, the same divided panel of the Third Circuit has repeatedly frustrated the FCC’s efforts to amend its rules to allow broadcasters to compete in today’s dynamic media marketplace. Upon review, I hope that the Supreme Court will affirm the FCC’s reforms, which empower struggling local news outlets to thrive in today’s increasingly competitive media landscape.”
News of the grant of certiorari, which the Supreme Court gives when it decides, at the request of a party challenging the decision of a lower court, to review the merits of the case, came in a simply stated Order List it distributed Friday morning.
It noted that FCC, et. al. v. Prometheus Radio Project, et. al. and National Assn. of Broadcasters, et. al. v Prometheus Radio Project, et. al. have been consolidated. And, a total of one hour is being allotted by the Supreme Court for oral argument.
The FCC’s path to a Supreme Court hearing — one that very much includes the NAB — formally began late in the day on Friday, April 17. That’s when the Commission revealed in a brief statement that it will appeal the Third Circuit Appeals Court ruling that remanded its “modernization” effort. In doing so, the Commission said it sought SCOTUS’ review of a decision “obstructing” FCC efforts to bring its ownership rules out of the mid-1970s and into 2020.
The decision to move forward with a Supreme Court appeal was somewhat of a surprise. In September 2019, the possibility was discussed in RBR+TVBR. At the time, the FCC had two paths it could take. One was an en banc appeal, where a case is heard before all Appeals Court judges rather than by a panel. This was nixed, setting the stage for one more option, less a rewrite and retry of getting its modernization effort past the Third Circuit’s scrunity.
Now, there will be no rewrite unless the Supreme Court says so.
A THREE-YEAR FIGHT
On November 16, 2017, the FCC took a bold step in its GOP-fueled rule “modernization” efforts by voting 3-2 to eliminate its cross-ownership rules for newspaper and broadcast media and for radio and TV, respectively. The “Eight-Voices Test” was also erased.
Prometheus Radio Project wasn’t going to let that stand, and took the Commission to Court.
In a 2-1 vote made in September 2019, a three-judge panel serving in the Third Circuit of the U.S. Court of Appeals vacated and remanded “the bulk of its actions” taken with respect to “sweeping rule changes” by the FCC and their impact on ownership of broadcast media by women and racial minorities.
The NAB and Cox Media Group were intervenors challenging Prometheus, while the Multicultural Media Telecom and Internet Council (MMTC) and National Association of Black Owned Broadcasters (NABOB) were joined by Bonneville International Corp. and The Scranton Times in serving as intervenors challenging the Commission.
With SCOTUS agreeing to a hearing, it will now be up to the highest court in the land — with Justice Ruth Bader Ginsburg‘s seat empty following her passing — to decide whether or not the Third Circuit ruling was justified.
The decision could be one of the most impactful ever seen for media broadcasters.
Writing for the Court, Third Circuit Judge Thomas Ambro slammed the Commission, noting that after its last encounter with the periodic review by the FCC of its broadcast ownership rules and diversity initiatives, “the Commission has taken a series of actions that, cumulatively, have substantially changed its approach to regulation of broadcast media ownership.”
First, Ambro noted, “it issued an order that retained almost all of its existing rules in their current form, effectively abandoning its long-running efforts to change those rules going back to the first round of this litigation.”
Then, Ambro said, “it changed course, granting petitions for rehearing and repealing or otherwise scaling back most of those same rules.”
For the NAB and media companies seeking to further consolidate in a world where digital media has poached ad dollar after ad dollar, the words of Ambro were less than pleasing.
This led Gray Television in May 2020 to issue a statement that urged SCOTUS to reverse the Third Circuit remand.