The FCC Tells Appeals Court It's Doing Just Fine Ensuring Media Ownership Diversity

The 3rd Circuit was doubtful in a September opinion that ordered the media regulator to do a better job examining how deregulation would impact ownership of TV and radio stations by women and minorities.
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Thanks to the Telecommunications Act of 1996, a Bill Clinton-era law that overhauled regulation of media, there's a big brawl that inevitably occurs every four years in court. The FCC undertakes a quadrennial review of its broadcast ownership rules, and groups file legal challenges complaining that the agency skirted its duties and came to unjustifiable conclusions.

"Here we are again," began a Sept. 23 opinion by 3rd Circuit Judge Thomas Ambro.

Except this time, there was some difference. Thanks to the election of Donald Trump, the conservatives, led by chairman Ajit Pai, got voting control over the FCC, and they've pursued a deregulatory regime with fervor. Out went a rule banning common ownership of a daily newspaper and broadcast station in a single market as well as a restrictions on mergers that would leave fewer than eight independently owned stations in the market. These changes, among others, caused civil rights and public interest groups to file their own court challenges, which led to a scathing 3rd Circuit decision two months ago that halted the FCC's action plan.

On Thursday, the FCC moved for reconsideration before a fuller panel at the 3rd Circuit. The agency describes a situation where its powers have been neutered over the past couple decades while begging for deference and restoration "as the congressionally empowered overseer of media ownership regulation."

Just what has got Pai all hot and bothered?

In the September decision, Ambro wrote for the majority, "Problems abound with the FCC’s analysis. Most glaring is that, although we instructed it to consider the effect of any rule changes on female as well as minority ownership, the Commission cited no evidence whatsoever regarding gender diversity.

"Even just focusing on the evidence with regard to ownership by racial minorities, however, the FCC’s analysis is so insubstantial that it would receive a failing grade in any introductory statistics class," continued the opinion, which concluded that the agency had violated the Administrative Procedures Act and that the bulk of its actions with regards to ownership rules should be vacated and remanded for more consideration.

Pai doesn't want a redo.

According to the FCC's latest rehearing petition, the agency thinks the justifications it gave for relaxing media rules were perfectly fine. For example, regarding the newspaper/broadcast cross-ownership rule, the FCC cites its finding that a repeal would help struggling local newspapers and broadcast stations compete with internet-based news sources. As for the demand for a statistical study into the effects of the FCC’s rules on female and minority ownership, the FCC responds that there's nothing in the Administrative Procedures Act requiring the agency to supplement or improve data before coming to a decision.

The FCC also defends how it defined the "eligible entities" that could participate in incubation programs aimed at improving diversity. Pai's FCC adopted a revenue-based approach rather than race- or gender-conscious definitions upon constitutional concerns. The 3rd Circuit suggested that viewpoint diversity in media might provide a compelling government interest to take gender and race into account for FCC rules, but the FCC sticks to its position that such an approach would violate the Fifth Amendment. 

Here's the full FCC petition.