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Oral Argument Set in Challenge to FCC JSA Decision - Broadcasting & Cable

Oral Argument Set in Challenge to FCC JSA Decision

April 19 is red letter day in Third Circuit
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The U.S. Court of Appeals for the Third Circuit has set oral argument in broadcasters' challenge to the FCC's decision to make most TV joint sales agreements attributable as ownership interests (The case is Howard Stirk Holdings LLC v. FCC, et al).

Arguments will be held April 19, with 20 minutes allotted for each side. That puts it smack dab in the middle of NAB's annual convention.

Final briefs in the case were filed last August with the U.S. Court of Appeals for the D.C. Circuit and oral argument had been scheduled for Dec. 3 there. But that was canceled and the case transferred to the Third Circuit, which remanded the FCC's last attempt to resolve its media ownership rule review with instructions that when it took another crack at it, the result should go back to that circuit.

The D.C. Circuit had won the lottery—literally, since that is how venues are chosen—after challenges to the March 2014 rules were filed in multiple appeals courts, but Prometheus, which originally challenged the FCC's media ownership deregulation now well over a decade ago, filed a request to transfer the case back in June 2014, pointing out that the Third Circuit had retained jurisdiction.

While broadcasters challenged the FCC JSA tightening as unwarranted, Prometheus Radio Project challenged the FCC decision as insufficiently regulatory,

In March 2014, the FCC voted to count most TV JSAs as ownership interests, which prevents new combos in markets where the sales half of a JSA already owns a station, and requires unwinding of existing deals. Congress modified the timetable of that decision, but the decision remained.

Congress has since pushed out the deadline for unwinding the JSA's.

The National Association of Broadcasters (along with Howard Stirk Holdings and Nexstar) briefed the court back in April 2014 on their issues.

They argued that the FCC evaded its obligation by rolling the unfinished 2010 ownership review into a 2014 proceeding that won't be done until 2016. They argue the FCC had a statutory responsibility to make a decision on whether existing rules limiting station ownership were still necessary.

They also take issue with the FCC's decision as part of that review to make most TV joint sales agreements attributable as ownership interests, pointing out that while the FCC said it could not reach any decisions about existing rules, it managed to create a new ownership rule regarding JSAs.

The broadcasters also say the FCC refused to consider the public interest benefits of JSAs.

Backing Prometheus' challenge was the Minority Media & Telecommunications Council.

Prometheus, among other things, takes issue with the fact that the FCC has yet to comply with the Third Circuit Court of Appeals' order to justify or modify the FCC's method of boosting minority ownership, or propose new measures to do so.

In deciding to combine the 2010 and 2014 congressionally mandated media ownership rule reviews, the FCC deferred a decision on the minority issues.

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