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Prometheus Challenges FCC Media Ownership Decision

Says FCC failed again to fulfill court directives

This article originally appeared in Broadcasting & Cable.

Prometheus Radio Project has challenged parts of the FCC’s Aug. 25 quadrennial ownership review, continuing a legal battle that has been going on for well over a decade.

In a filing with the U.S. Court of Appeals for the Third Circuit, Prometheus and the Media Mobilizing Project said the FCC once again has failed to satisfy earlier directives from that court by reinstating an earlier definition of eligible entity the court had vacated and remanded “while citing no additional evidence to show that this definition will promote ownership opportunities [for] minorities and women.���

Prometheus et al. said that the FCC had acknowledged it had 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.

Prometheus also challenges the FCC’s decision to modify some broadcast ownership rules “so as to permit increased concentration,” as well as its “failure” to treat shared services agreements — as it now does most joint sales agreements — as attributable ownership interests subject to local market duopoly rules.

The item does define shared services agreements (SSAs) for the first time and will require they be filed with the FCC.

Prometheus says the FCC actions, and inactions, are illegal, an abuse of discretion and beyond its statutory authority.

They want the court to reverse the Aug. 25 order and require the FCC to comply with the court’s remand of the earlier rules.

“While we generally support the decision to retain the ownership rules and reinstate JSA attribution, the commissions intransigence with respect to getting reliable data to make meaningful efforts to diversify ownership is a serious legal and policy error,” said Andrew Schwartzman, one of the attorneys for Prometheus.

As with earlier challenges to the court’s decisions on media ownership rules, broadcasters also don’t like the FCC decision but because they found the quadrennial order insufficiently deregulatory, not insufficiently regulatory, as Prometheus claims.

They had argued that retaining the newspaper-broadcast crossownership restriction, for example, was inexplicable.

The FCC Democratic majority voted not to lift crossownership rules or loosen local market station limits. “Based on our careful review of the record, we find that the public interest is best served by retaining our existing rules, with some minor modifications,” the order said when it was released Aug. 25.

One of those is providing a “failing newspaper” waiver for newspaper-broadcast crossownerships similar to its failing station waiver, but the presumption is still that such crossownerships are out of bounds short of such extenuating circumstances.

The FCC pegged retaining the rules to program diversity.