Justices May Usher In the Modern Broadcast Age—Two Decades Late

Two judges on the Third US Circuit Court of Appeals have spent the past 17 years blocking a congressionally mandated modernization of antiquated broadcast-television regulations. The Supreme Court will hear an appeal on Jan 19, FCC v. Prometheus Radio Project, giving broadcasters the chance to be unshackled from restrictions this activist court continues to impose on them—which are contrary to court precedent and statute and make no sense in light of the competition from digital media. At stake are Federal Communications Commission rules that would allow broadcasters to compete more efficiently against less-regulated tech companies, invest more in local news gathering, and strengthen their position as a crucial conduit for free speech. In the face of rising production costs and declining ad revenue, broadcasters must be able to combine defensively, or they’ll start to disappear like local newspapers. Without them, Americans will be less informed and will lose a valuable conduit for free speech. The Supreme Court should overturn the Third Circuit’s decision, direct it to obey Congress’s mandate in 202(h), and reinstate the FCC’s sensible 2017 order. Two judges shouldn’t be permitted to accelerate the decline of local broadcasting by diktat.

[McDowell served as a commissioner of the Federal Communications Commission, 2006-13. He is a partner at Cooley LLP and has submitted a friend-of-the-court-brief in this appeal on behalf of Gray Television.]