Third Circuit Court of Appeals astounded by the Federal Communication Commission (FCC) Media Ownership Delay

Story by Inside Radio

Broadcasters have long complained about the Federal Communication Commission’s inaction over media ownership regulations. The industry has found a powerful ally in the Third Circuit Court of Appeals in Philadelphia, which issued a sharp rebuke of the FCC and is threatening to abolish all media rules if the delays continue.

The court said it was “troubling” that nearly a decade has elapsed since the FCC last completed a review of broadcast ownership rules despite federal law requiring one be done every four years. Because of the ongoing delays, circuit judge Thomas Ambro noted some broadcasters have petitioned the court to wipe all the media regulations off the books. But he said that would be a step too far—for now.

“This is the administrative law equivalent of burning down the house to roast the pig, and we decline to order it,” Ambro wrote. “However, we note that this remedy, while extreme, might be justified in the future if the Commission does not act quickly to carry out its legislative mandate.”

But the court acknowledges the Commission’s delay has kept local radio and television broadcast ownership rules “in limbo,” noting the same fate for the radio/television cross-ownership rule, the newspaper/broadcast cross-ownership rule and the dual network rule.

But to abolish them in a single sweeping move would harm broadcasters, Ambro wrote in the 56-page opinion. “This would invite chaos, and it presumably would lead to drawn-out litigation over whether combinations entered into during this vacuum could continue to exist even if the Commission later determined to outlaw them once again,” he concluded.

Speaking to reporters in Washington on Wednesday, FCC chair Tom Wheeler said the court ruling is the result of a dozen years of inaction by both Republican and Democratic administrations. “I committed to the Congress, and the FCC told the court that we would be putting forth a media ownership proposal by June 30. I intend to stick with that,” Wheeler pledged.

But the court’s ruling wasn’t about waiting to see what the FCC would do with at least one rule. It struck down a change made two years ago when the agency voted to make television station joint-sales agreements attributable toward ownership caps.

The National Association of Broadcasters said it “could not be more pleased” with the court’s opinion. Spokesman Dennis Wharton said it directs the FCC to “reflect the modern world” when reassessing ownership rules. “We’re particularly delighted the court highlights the irrationality of a rule that bars broadcast-newspaper combinations in the same market,” Wharton said. “This rule needs to be ended immediately.”

The judge’s order is also winning praise from some on Capitol Hill. “This is yet another unsurprising chapter in the FCC’s miserable history on the media ownership rules,” Communications and Technology Subcommittee chairman Greg Walden (R-OR) said. “These failures have real world consequences, taking a particular toll on minority broadcasters and minority media creators, who are already struggling mightily to survive.”

The appeals court seems to agree, saying the FCC “needs more data” to define what qualifies as “small disadvantaged business enterprises,” or SDBs. It ordered the agency to “act promptly” to complete studies on minority and female ownership levels and adopt a new SDB definition. “If it needs more data to do so, it must get it,” Ambro wrote.

The court also ordered the FCC to follow through with a pledge to address two-dozen minority ownership proposals submitted by the Multicultural Media, Telecom and Internet Council during the past decade. It is expected many of those ideas will be rolled into Wheeler’s forthcoming ownership proposal. MMTC president Kim Keenan is encouraged the court is pushing the FCC to move quickly. “Justice delayed is not justice denied,” she said. “After 12 years of FCC delay, at last a definition that would advance minority broadcast ownership appears to be within reach.”

Read the full court ruling: http://www.nab.org/documents/newsRoom/pdfs/052516_Media_Ownership_Decision.pdf