Third Circuit Denies Full-Court Review of Media Ownership Decision

Three-judge panel had voted in July to vacate FCC's loosening of crossownership ban

By John Eggerton -- Broadcasting & Cable, 9/6/2011 11:12:50 AM

According to a copy of the decision, released Tuesday, the Third Circuit Court of Appeals has declined a broadcaster petition for an en banc rehearing of its media ownership ruling.

A three-judge panel of the court in July voted 2-1 to vacate the FCC's loosening of the newspaper-broadcast crossownership ban (though on procedural grounds), smacked down some of its ownership diversity efforts, and supported the decision not to loosen other ownership regs.

Broadcasters then sought a rehearing by the full court, which Monday released its decision. The vote was 4-3 not to re-hear the case.

The National Association of Broadcasters (NAB), CBS, Belo, and others had sought the re-hearing in an Aug. 22 filing, saying that the three-judge panel had gotten it wrong and asserting that the Third Circuit appeared to want to retain jurisdiction over the case "in perpetuity." The same three-judge panel had ruled against the rules back in 2004, the petition pointed out.

The petitioners had agreed with the dissenting judge on that panel, Judge Scirica, that the holding that the FCC's loosening of the newspaper/broadcast crossownership rules in 2007--in response to that first three-judge panel decision--had to be thrown out for lack of notice "conflicts with the plan language of the Administrative Procedures Act and the Court's prior decisions."

But in a single paragraph -- the court does not have to explain why it decides not to grant a full rehearing -- the court explained that "no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court en banc (in full) the petition of rehearing is denied.

"NAB believes that rules written in an era of Lucille Ball ought to be modestly reformed to allow free and local stations to remain competitive with pay multichannel platforms," NAB Spokesman Dennis Wharton said in a statement.

 

"This was not a surprise," said Andrew Schwartzman, SVP of Media Access Project, which represented Prometheus Radio in challenging the FCC. "It paves the way for the FCC's forthcoming review of the ownership rules."