Supremes Could Signal Future of Media Ownership Challenge

'Yes,' 'no,' or implied 'maybe' all on table when court releases cert list Monday
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The Supreme Court Monday (April 16) could weigh in on broadcasters' challenge to the FCC's media ownership rules.

The High Court has been asked to overturn the Third Circuit Court of Appeals ruling last July upholding the FCC's 2008 decision not to loosen the TV duopoly, radio ownership or TV/radio cross-ownership rules, but vacating the FCC's loosening of the broadcast/newspaper cross-ownership rule for failure to meet notice and comment requirements.

The Supremes had a conference Friday where they were expected to consider three appeals of the Third Circuit Court of Appeals ruling. The National Association of Broadcasters sought appeal on the grounds that there was a split in the circuits, while Tribune (joined by Fox, Sinclair, Clear Channel, Bonneville, and the Newspaper Association of America) and Media General challenged on constitutional grounds in separate petitions. The list is bare bones, simply identifying which cases have been accepted or denied, with no explanation for why either decision was made.

SCOTUSblog.com, an indispensable resource for court watchers, had the NAB ownership appeal on its "petitions to watch" list for the Friday conference, while another lawyer following the appeals said he would be checking out the cert list as well. If it is any comfort to broadcasters, that SCOTUS Blog list is of appeals its handicappers think have "a reasonable chance" of being granted.

Broadcast lawyers aren't so sure, Two we talked with suggested the odds were against the court taking the challenges.

The court could decide to hear the appeals, deny them, or do nothing (the "maybe" option). The last puts the decision off for another day -- the court is under no deadline to decide -- but may well signal that the court is waiting until it rules on the government's challenge to FCC indecency enforcement before it decides, since that also implicates the scarcity rationale for broadcast regulation (Red Lion Broadcasting Co. v. FCC) that Tribune et al. and Media General are challenging in their appeals to the Supremes.

"The Solicitor General suggested that the court might want to hold the petitions until after it decides the indecency case," said Andrew Schwartzman of Media Access Project, the public interest law firm that has repeatedly challenged FCC media ownership deregulation. "It is possible they will take no action, in which case you can assume they are going to hold it until the indecency case is decided."

In its petition, NAB argued that a split in the lower courts needs to be resolved because the D.C. Circuit previously found that the duopoly rules, which limit how many stations one company can own in a market, were arbitrary and capricious. The Third Circuit, in its decision last summer, upheld the rules. Resolving such circuit splits is one of the reasons the Supreme Court will take a case, though it is no guarantee the court will hear the appeal.

Tribune et al. and Media General went beyond the procedural issue to challenge the underpinnings of the FCC's authority to impose ownership rules.

Meanwhile, the deadline for comment on the FCC's media ownership rules, including its efforts to promote diversity, is April 17 (the Third Circuit also remanded some of the FCC's minority ownership changes -- also part of that FCC 2008 decision -- for further clarification).

Various parties had asked for a four-week extension of the initial April 3 deadline to take it well past the April 16 date for releasing the Supreme Court list of appeals granted, denied or not acted upon. But the FCC last month instead decided on only a two-week extension to just past that date, calling four weeks "unnecessarily long."

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