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Court Orders FCC to Get Cracking on Diversity Issues

Circuit appeals court says commission must clarify definitions in order to better promote diverse broadcast ownership

Industry groups are praising a federal circuit court decision that takes the Federal Communications Commission to task for not moving more decisively to improve diversity.

In addition to tackling big issues of media ownership rules and joint sales agreements, the ruling Wednesday by the Third Circuit Court of Appeals in Philadelphia also said the time had come for the commission to take more decisive action on diversity. Specifically, the commission was charged with not adequately clarifying the definition of so-called “eligible entities” that would allow for additional minority and female ownership.

“We conclude that the FCC has unreasonably delayed action on its definition of an eligible entity — a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership — and we remand with an order for it to act promptly,” the court wrote.

Although courts owe deference to agencies, there also comes a time to let an agency know that enough is enough, the court said in its 60-page ruling. “For the commission’s stalled efforts to promote diversity in the broadcast industry, that time has come.”

The group of petitioners in the case said FCC diversity efforts have fallen short, particularly when it comes to improving ownership for minority and female stakeholders as part of the commission’s Quadrennial Review, during which it must examine broadcast ownership rules. Those petitioners included the Multicultural Media, Telecom and Internet Council, the Prometheus Radio Project, the National Association of Broadcast Employees and Technicians and others.

The court detailed steps the FCC has taken to address diversity but said it is time to order it to act promptly to bring the eligible entity definition to a close.

“[The FCC] must make a final determination as to whether to adopt a new definition,” the court wrote. “If it needs more data to do so, it must get it.”

The decision was praised by the MMTC.

“After 12 years of FCC delay, at last a definition that would advance minority broadcast ownership appears to be within reach,” said MMTC President and CEO Kim Keenan. ”We are encouraged that the Third Circuit wants to give relief to multicultural owners in the clear future rather than some distant, unknown future.”

The court also ordered the FCC to address 24 diversity-related proposals suggested by a coalition of national organizations, which the commission is expected to address formally in June.

The National Association of Broadcasters said it shares the court’s apparent interest in preserving minority and female ownership opportunities in broadcasting. “We strongly believe that broadcast employment and ownership should reflect the changing demographics of America,” said David Wharton, executive vice president of communications.

The nonpartisan communications organization Free Press said that in this case the FCC has indeed been “derelict” in its duties to promote broadcast diversity, competition and localism in conjunction with the agency’s congressionally mandated quadrennial review, said Matt Wood, Free Press policy director, in a statement.

“The result has been a decade or more of delay in the FCC’s mere comprehension of the problem — let alone its ability to take effective steps to combat it — as broadcast ownership levels for women and people of color languish at appallingly low levels,” he said.

In its ruling, the court ordered the commission and the petitioners to create a timetable for final agency action. If no agreement is set within 60 days, the court will set a schedule.

According to a Broadcasting & Cable report, FCC Chairman Tom Wheeler said he is committed to getting a quadrennial media ownership review draft out the door by the end of June. (For a helpful overview of the broader issues involved with the ownership review process, see this commentary by Lauren Lynch Flick of law firm Pillsbury Winthrop Shaw Pittman.)