Breaking Up 2018 QR Unlikely to Dodge 3rd Circuit, Attorneys Say
Strategies for getting around the 3rd U.S. Circuit Court of Appeals that involve the FCC splitting off deregulation items from the 2018 quadrennial review and approving them (see 1911210065) are unlikely to be successful, said experts including broadcast attorneys in interviews in December. The ruling requires the agency base changes to ownership rules on data about the rules’ effects on minority ownership, said United Church of Christ attorney Cheryl Leanz, who argued for the petitioners in Prometheus IV. “If the FCC doesn’t get the data, they don’t get to pass go.”
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Breaking the 2018 QR into smaller pieces likely wouldn’t keep it out of the hands of the 3rd Circuit, broadcast lawyers said. The same anticonsolidation groups likely would challenge the FCC in court on the individual orders, they said. “I think the 3rd Circuit would take the position that the same analysis is required,” said Foster Garvey's Lawrence Miller. “And they’re not going to be super happy to see the FCC try to get around them.” The 3rd Circuit rejected an FCC en banc appeal (see 1911200063). The court’s ruling requires the FCC to have the minority ownership data “whatever they do,” said Fletcher Heald's Dan Kirkpatrick. The agency didn’t comment.
Since the FCC compiled a record on proposals in the 2018 QR, it could move straight to an order if it sought to approve one them individually -- such as the proposal to loosen local radio ownership rules -- several attorneys said. Since the agency is expected to pursue a Supreme Court appeal for Prometheus IV, it’s likely to be some time before it would act on the 2018 QR as a whole, they said. Commissioner Mike O’Rielly expressed interest in the idea (see 1911220049), and FCC Chairman Ajit Pai’s Chief of Staff Matthew Berry said the agency is deciding what to do about the 2018 review (see 1912100034). Democratic FCC Commissioners Geoffrey Starks and Jessica Rosenworcel said the agency should follow the court’s direction. Commissioner Brendan Carr would want the Office of General Counsel to opine on breaking up the items.
Some broadcast lawyers said approving items such as subcap deregulation on their own could mean the opportunity for the subsequent court cases to be heard in different courts. Some broadcast officials said the 3rd Circuit is an outlier in retaining jurisdiction for so long, over so many iterations. Prometheus IV said the court still keeps jurisdiction, and it’s likely entities such as Prometheus would seek to have any proceeding in another venue transferred to the 3rd Circuit panel. Broadcasters have been unsuccessful in seeking to have previous iterations heard in the D.C. Circuit, Leanza said.
Subcap deregulation is considered the biggest proposal in the 2018 quad review, but it mightn't be the most suitable way for the FCC to test courts because it isn’t universally supported among broadcasters, said Womble Bond radio lawyer John Garziglia. If the agency deregulated local radio ownership and found itself facing challenges from other broadcasters, plus expected public interest challenges, the rule change would face a tougher road, he said. Another broadcast attorney argued radio deregulation is unlikely to provoke as much opposition as TV deregulation does.
Approving discrete policies on their own might allow the FCC and broadcasters to focus their arguments, without the whole of the QR weighing them down, some said. Other legal practitioners said if those arguments happen in front of the 3rd Circuit, the panel would be unlikely to shift. “Whether they do it in smaller pieces or not,” the agency still needs the data, Leanza said.