Third Circuit Remands Newspaper-Broadcast Rule Change to FCC (Updated)

The Third Circuit Court of Appeals has upheld the Federal Communications Commission's 2008 decision not to loosen the television duopoly, radio ownership or TV-radio crossownership rules and vacated and remanded its loosening of the broadcast/newspaper crossownership rule for failure to meet notice and comment requirements. It also remanded some of the FCC's minority-ownership efforts for further clarification.

The FCC is currently reviewing its ownership rules under a congressional mandate and the court said it could solicit new comment on the newspaper-broadcast crossownership rules in that context, but the court retained jurisdiction over the remand. "Today we affirm the 2008 Order with the exception of the newspaper/broadcast cross-ownership rule," wrote the court, "for which the Commission failed to meet the notice and comment requirements of the Administrative Procedure Act. We also remand those provisions of the Diversity Order that rely on the revenue-based "eligible entity" definition, and the FCC‘s decision to defer consideration of other proposed definitions (such as for a socially and economically disadvantaged business, so that it may adequately justify or modify its approach to advancing broadcast ownership by minorities and women." Broadcasters had challenged the FCC's decision under then Chairman Kevin Martin not to loosen most rule changes, and had challenged its loosening of the ban on newspaper/broadcast cross-ownerships as insufficient deregulation, as well as firing a blunderbuss shot at all media ownership regulations as unconstitutional.

"Today’s decision is a sweeping victory for the public interest," said Corie Wright, policy counsel of Free Press. "In rejecting the arguments of the industry and exposing the FCC's failures, the court wisely concluded that competition in the media – not more concentration – will provide Americans with the local news and information they need and want."

Andrew Jay Schwartzman, Senior Vice President and Policy Director of Media Access Project (MAP), said, “We won on almost every point. This decision is a vindication of the public’s right to have a diverse media environment. The FCC majority knew that its effort to allow more media concentration was politically and legally unworkable, so it tried to end-run the procedural protections that are designed to give the public the right to participate in agency proceedings. It was disappointing that FCC Chairman Genachowski chose to defend his predecessor’s erroneous action, but now that the Court has directed the FCC to make sure the public is not ignored, we can look forward to having a right to meaningful participation as the FCC looks at these questions again.”

Update:

FCC Commissioner Michael Copps said, "This decision is a huge victory for the millions of Americans who have gone on record demanding a richer and more diverse media. The Third Circuit has brought into clear focus the shortfalls of two previous FCCs on media ownership and their lackluster performances in encouraging more minority and female ownership of our broadcast outlets." He added, "It is clear from this decision that those previous Commissions abdicated their responsibility to consider diversity of ownership and diversity of viewpoint when they wrote their flawed rules."

FCC Commissioner Mignon Clyburn said the decision "sends the important message that ownership diversity remains an important aspect of the overall media ownership regulatory framework."