This week, broadcast industry executives welcomed a ruling by a three-judge panel of the Third Circuit Court of Appeals, which rejected a joint request by the Prometheus Radio Project and the Media Mobilizing Project (MMP) to stay the effectiveness of the FCC’s recent decision to modify or eliminate various media ownership rules.
Adopted last November by a 3-2 vote along party lines, the FCC order at the heart of the Third Circuit ruling addressed petitions for reconsideration of the agency’s August 2016 decision to retain many of the agency’s media ownership rules. Specifically, the reconsideration order eliminated media ownership rules that the FCC had retained or reinstated as part of its August 2016 order in the 2010/2014 Quadrennial Review proceeding, including (1) the Newspaper/Broadcast Cross-Ownership Rule, which was first promulgated 1975, (2) the Radio/Television Cross-Ownership Rule, and (3) rules that treat joint sales agreements among broadcasters within the same market as attributable ownership interests. The reconsideration order also allows “exceptions to the prohibition on an entity owning two of the top four stations in a market if it can be shown that a particular transaction would be in the public interest.” In a related rulemaking notice, the FCC requested comment on a proposal to establish a new incubator program through which “established broadcasters would help facilitate entry by new voices into the marketplace by providing access to capital and/or technical expertise to new entrants and small businesses.”
Arguing that the FCC failed to satisfy previous directives by the Third Circuit to assess the impacts of any proposal to modify the media ownership rules on media ownership diversity, Prometheus and the MMP asked the Third Circuit last month to overturn the reconsideration order in its entirety. Separately, Prometheus and the MMP also filed an emergency petition for a writ of mandamus to block the February 7 effective date of the reconsideration order. In a ruling handed down on Wednesday, however, the Third Circuit panel denied the emergency petition. In so doing, the Third Circuit panel declared that Prometheus and the MMP “have not satisfied the exacting standard for obtaining such relief.” The court may, according to the ruling, issue a writ of mandamus “only if the petitioner shows (1) a clear and indisputable abuse of discretion or error of law, (2) lack of an alternative avenue for adequate relief, and (3) a likelihood of irreparable injury.” Noting that the FCC’s deadline for public comment on the proposed incubator program has not yet passed, the court further declared that any action on the petitioners’ underlying appeal of the reconsideration order “shall be stayed for a period of six months from the date of this order.” Although officials of Prometheus and the MMP offered no comment, National Association of Broadcasters executive vice president Dennis Wharton told reporters: “we’re grateful that the court rejected the mandamus request and that meaningful reform of outdated broadcast ownership rules can go forward.”