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Court Still Considering Prometheus Challenge to Media Ownership Rules

LPFM promoter believes NAB’s minority ownership incubator idea is insufficient

A federal three-judge panel in Philadelphia is still considering an objection to the FCC’s latest ownership rules.

Prometheus Radio Project in 2016 petitioned the U.S. Court of Appeals for the Third Circuit challenging parts of the FCC’s quadrennial ownership review, which the commission adopted in August 2016. Prometheus and the Media Mobilizing Project claimed the FCC had failed to satisfy earlier directives from the court to promote ownership opportunities for minorities and women while labeling its actions as illegal and an abuse of discretion. Prometheus is also challenging the FCC’s decision to modify broadcast ownership rules, which permits increased concentration.

However, the FCC asked the court earlier this year to place the proceeding in abeyance — to temporarily suspend it — until the commission can take action on a pending petition filed by the National Association of Broadcasters late last year to reconsider the order. The FCC believes the NAB petition overlaps with substantial parts of Prometheus’ issues.

Prometheus, an advocate of low-power FM stations, thinks the court should move forward with the proceeding. “The FCC’s supplement fails to identify any area of overlap between petitioners’ claims and NAB’s petition for reconsideration that support holding this case in abeyance,” Prometheus said in a recent supplemental filing.

Prometheus in its original petition challenged the FCC’s decision to retain a revenue-based definition of “eligible entity” as a means to promote ownership diversity. Prometheus said that the FCC acknowledged it “failed to come up with a definition based on one used by the Small Business Administration” despite being instructed to do so by the court.

The NAB petition for reconsideration pushes the FCC to use an incubator program, as well as a more targeted eligibility standard, as a means to diversify ownership.

In supplemental comments filed in June, Prometheus said the NAB has not provided any additional description of how the incubator would work or any reason to believe it would be effective. “The FCC supplement states that NAB maintains that its proposed incubator program would ‘provide a practical method for increasing ownership diversity.’ While it is true that NAB makes this claim in its Petition for Reconsideration, the commission itself has repeatedly rejected incubator proposals as unworkable. Petitioners agree with the commission on this point and do not support NAB’s incubator program,” according to Prometheus. “In any event, it is extremely unlikely that the commission will adopt an incubator program on reconsideration.”

Meanwhile, the FCC in its supplemental comments said it still believes the NAB’s proposal goes to the crux of Prometheus’ complaint: “(That is) whether the FCC has taken sufficient steps to promote diversity in ownership. Prometheus contends that the commission ‘must adopt measures to improve the current state of ownership’ of broadcast stations by women and minorities. NAB maintains that its incubator program would ‘provide a practical method for increasing ownership diversity.’”

Radio World reported at the time of the Prometheus filing the long-running back and forth legal battle over the FCC’s ownership rules has gone on for well over a decade. There is no indication from reviewing the court docket in this case whether the three-judge panel is close to making a decision.