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Prometheus, Et al, Fire Back at FCC Over Ownership Dereg

Says agency still has not justified decision in light of lack of broadcast diversity

Groups that filed a legal challenge to the FCC’s media ownership deregulation under FCC Chairman Ajit Pai have told the court that the FCC ignored its obligation to the public interest, and an order from a federal appeals court, to study the impact of its moves on diversity.

That came in a reply brief to the U.S. Court of Appeals for the Third Circuit.

The groups said the FCC ignored the impact of the broadcast incentive auction — where owners gave up their licenses for pay — on the amount of broadcast diversity. The Third Circuit had instructed the FCC to consider the impact of the broadcast incentive auction on diversity, it did not. The FCC has said that was also reasonable because not all the facts were in. While the auction was over by the time it made its 2017 decision to deregulate, the repack was not.

“The Third Circuit has told the FCC on multiple occasions to examine how its media ownership rules impact race and gender ownership diversity,” said Michael Copps, former FCC chairman and special advisor to Common Cause, one of the petitioners. “The FCC has not only failed to assess the impact of its rules on minority ownership but has also abandoned its rules all together. We urge the court to reverse this unlawful decision and require the FCC to fulfill its statutory mandate to promote race and gender diversity in media ownership.”

“The FCC and intervenors [broadcasters and others filing briefs in support of the commission] ignore petitioners’ core points and this court’s mandate about the agency’s obligation under the public interest standard …,” the petitioners told the court. “The FCC tries to have it both ways — claiming it has addressed race/gender ownership diversity yet insisting it cannot. Neither is true: the FCC must heed its obligation to at minimum do no harm to race/gender diversity by apprising itself of knowable facts. The FCC cannot justify reliance on an insubstantial record.”

It was in response to the FCC’s defense of the decision filed with the court last month. The FCC had told the court that it did gauge the effect of its 2017 broadcast deregulation on media ownership diversity and found it would have “no material impact.”

The FCC’s deregulatory moves came as part of its congressionally mandated quadrennial review, which also had to be responsive to a Third Circuit remand of its previous review, part of a years-long legal challenge to media deregulation stretching back to the early 2000s.

Indicating, Goldilocks-like, that its decision was neither too regulatory nor too deregulatory, but justifiably “just right,” the FCC told the court that it had reasonably updated its rules in light of increased competition and its public interest analysis, which included that the old rules were doing affirmative harm. The FCC also suggested the groups did not even have standing to bring the suit, something they countered in their reply as well. In fact, it asked the court for permission to provide additional supporting material for its standing.

The FCC launched a program to encourage established broadcasters to help minorities and women get into the business, but the groups told the court that did not cut it. “The FCC is left only with the Incubator Program to meet its obligation [to diversity in broadcasting], whose eligible entity definition is without “a sufficient analytical connection” to the statutory goal of race/gender diversity.”

The brief was filed by Prometheus Radio Project, Media Mobilizing Project, Free Press, Office of Communication, Inc. of the United Church of Christ, National Association of Broadcast Employees and Technicians-Communications Workers of America and Common Cause.

The Communications and Technology Law Clinic Institute for Public Representation Georgetown University Law Center is representing petitioners in the legal challenge.