Expected FCC SCOTUS Appeal Not Foregone Conclusion

The agency has until Feb. 18 to petition for cert but could ask for an extension, broadcast attorneys agreed. Such requests aren’t uncommon, and one from the FCC would likely be granted, they said. The agency hasn’t publicly committed to the SCOTUS appeal, but broadcasters and their lawyers widely expect one.

Commissioner Mike O’Rielly hopes the FCC does so. “I would like us to,” he told us at a news conference Tuesday. O’Rielly doesn’t see a downside to trying, conceding the case’s advancement to SCOTUS isn’t a sure thing. “They only take so many cases,” he said. If this doesn’t receive cert, rejection may not be “on the merits, necessarily,” he said. The FCC and DOJ didn’t comment Wednesday.

Just a tiny fraction of cert petitions are granted, but odds are better for government, said University of Texas law professor Michael Sturley. “More than half." It’s not clear how an FCC appeal would do, Sturley said. “There are only nine people who know” what cases will reach the court, he said, referencing the justices .

Lawyers think this appeal would have a better shot if it featured a circuit split. Sturley said that lack isn’t prohibitive. “A circuit split is a stand-in for how important the case is,” Sturley said. If justices feel that issues of broadcast ownership and diversity are important enough, they will pick the case, he said. Broadcast attorneys said that the same panel of judges in the same circuit has retained the case for so long could be a point in its favor. Others said it’s not clear whether that matters.

The full panel of the 3rd Circuit didn’t ask for additional filings before rejecting the FCC’s en banc appeal out of hand, said United Church of Christ attorney Cheryl Leanza, who argued for petitioners. “That shows the government’s case is weak.”

The FCC will likely have to coordinate with DOJ and the solicitor general's office before seeking cert, and that could be an additional hurdle, attorneys said. The SG determines which agency cases it will represent in the cert process, and since that office deals regularly with the court, it favors cases it believes will be granted, attorneys and professors said. “The solicitor general has a long term institutional interest,” said Davis Wright appeals lawyer Peter Karanjia. “It’s not a foregone conclusion,” he said. “A federal regulatory initiative has been struck down, and that is generally important in itself,” said Laycock. The agency will consult closely with the SG's office in the run-up to a cert petition, Karanjia said.

The commission could proceed and seek cert even without the OK, but such cases are very rare, attorneys said. In FCC v. Pacifica, which involved comedian George Carlin and obscenity, the SG filed against the FCC, said Georgetown law professor Angela Campbell. That situation, likely related to a change in administrations, is unlikely to be repeated here, she said.

The FCC’s shift on policies between administrations could work against cert, Sturley said. The high court looks askance at agencies flip-flopping by party in charge on what rules mean, he said. The FCC took positions on broadcaster joint sales agreements and other ownership policies involved in the case under Chairman Tom Wheeler that were then reversed when current Chairman Ajit Pai took over. “The actual meaning of the statute should be consistent, it shouldn’t change with the current administration,” Sturley said.

The petition needs to show the issue is of public importance, is squarely presented and isn't going to go away because of ambiguities in the facts or problems with jurisdiction, said Laycock. Parties opposing cert, he said, “will generally argue that the dispute is really more about the facts than the law, because the Supreme Court sits to resolve legal issues, not factual issues.”