Washington

NAB: Keep JSA Challenge In D.C.

Says Third Circuit has no special expertise that requires move 7/07/2014 10:14:00 AM Eastern

The National Association of Broadcasters has told the U.S. Court of Appeals for the D.C. Circuit that the four challenges to the FCC's decision to make most TV joint sales agreements attributable as ownership interest should not be moved to the Third Circuit.

That was the court that initially remanded the FCC's decade-old ownership rule revise back to the commission, where issues related to deregulation and diversity have yet to be resolved.

Prometheus Radio Project, which initially challenged the rule changes back in 2003, is one of the four challengers to the rules this time around as well (joined by Free Press, NABET, CWA and others) and filed in the Third Circuit. The D.C. circuit got the consolidated cases via lottery, which is how the court system decides when challenges are filed in multiple venues, but Prometheus petitioned to move the case to the Third, citing the precedend of the original challenge and decision out of that court.

NAB is challenging the FCC's decision to make joint sales agreements (JSA's) of over 15% attributable as ownership interests, saying the decision was arbitrary and capricious.

Prometheus says that decision was arbitrary and capricious, too, but because the FCC did not explain why 15% was the magic number, and because it did nothing to rein in other sharing arrangements.

The challenges extend beyond JSA's and sharing agreements to broader ownership issues, including the FCC's decision not to loosen the newspaper/broadcast crossownership ban.

The National Association of Broadcasters has told the D.C. Circuit that the new challenges should not be transferred to the Third Circuit because the FCC decision, taken under new Chairman Tom Wheeler in response to an item launched in 2010, were taken under a "separate and new review" and that the Third Circuit does not have any special expertise that warrants the transfer. The D.C. court has principal jurisdiction over FCC decisions, and NAB says the third Circuit's jurisdiction over two "narrow" issues from its 2006 review does not justify the move, arguing that it would "set a perilous precedent, effectively converting a narrow remand order into a hook that vests a single circuit with a virtual monopoly over review of any future agency proceeding that combines the remand with entirely new legal issues."

NAB also points out that a transfer would be inconvenient since all the parties and all the lawyers, even those of Prometheus, are based in D.C., as are the governmental respondents.

November