Petitioners File Briefs in SCOTUS FCC Media Ownership Suit

The opening briefs have been filed in a case concerning media outlet ownership rules promulgated by the Federal Communications Commission (FCC). According to the FCC, one of several petitioners, “[t]his case concerns the FCC’s repeated efforts over a period of 17 years—thwarted by a series of decisions by the same divided panel of the United States Court of Appeals for the Third Circuit—to loosen ownership restrictions that the agency has determined are no longer necessary in light of dramatic changes to the media landscape.” The Supreme Court of the United States agreed to take the case in early October after the Solicitor General filed a petition in April.

In its opening brief, the FCC argues that in the Telecommunications Act of 1996, Congress  instructed the FCC to review the rules “concerning common ownership of media outlets every four years to ‘determine  whether  any  of  such  rules  are  necessary  in  the public interest as the result of competition,’ and to ‘repeal or modify any regulation the FCC determines to be no longer in the public interest.’” Since 2003, the brief contends, the FCC has relaxed certain rules it deemed no longer necessary, in light of major changes in market structure. Yet, the agency claims, courts have persistently upended its revision efforts.

In the present case, the Third Circuit Court of Appeals did so, “solely on the ground that the agency had not adequately analyzed their potential effect on minority and female ownership of broadcast stations, without contesting the Commission’s core findings on competition,” the FCC explained. Thus, the question before the Supreme Court is whether the appellate panel erred by finding the underlying FCC orders “arbitrary and capricious” in violation of the Administrative Procedure Act (APA). The FCC claims that the decision is wrong for several reasons.

First, it avers that the rules at issue were the product of thorough and thoughtful decision-making. It included a public notice and comment period, a customary practice in agency rulemaking. Second, the FCC contends that it “has broad discretion to determine how much weight to accord different aspects of the public interest and how best to advance minority and female ownership,” thus, its decision deserves deference. 

Third, “by directing the FCC to conduct a particular analysis on remand, the court also improperly imposed an atextual procedural requirement on agency decision-making.”

Fourth, the decision impermissibly substitutes the judiciary’s judgment for the agency’s own, the FCC argues. Finally, the FCC argues, the appellate panel magnified the foregoing errors by crafting a “dramatically overbroad remedy.”

In their brief, the industry petitioners, a collection of television and radio broadcast corporations and trade associations, including the National Association of Broadcasters, echoed the FCC’s arguments. Their submission also contended that “[c]iting no statutory authority, the Third Circuit elevated policy preferences about ownership diversity above Congress’ express competition-based command.”

Though the respondents have not yet filed their response, their opposition to the petition for a writ of certiorari explained that “[t]he Third Circuit correctly applied settled principles of administrative law to a particular administrative record and held that the Federal Communications Commission did not adequately explain or support its conclusions about how its rule changes would impact its own long-standing policy goal.”

The FCC is represented by the Acting Solicitor General and the industry petitioners by Wiley Rein LLP, Gibson Dunn & Crutcher LLP, Wilkinson Barker Knauer, LLP, Lerman Senter PLLC, Pillsbury Winthrop Shaw Pittman LLP,  and Covington & Burling LLP.