3rd Circuit Hands FCC 4th Prometheus Loss

The 3rd U.S. Circuit Court of Appeals has vacated and remanded the FCC’s 2016 quadrennial review order, the deregulatory reconsideration order that followed, and a portion of the broadcast incubator order, said an opinion (in Pacer) in Prometheus v. FCC released Monday. The three-judge panel rejected broadcaster arguments that the FCC’s deregulation hadn’t gone far enough, and arguments from the National Association of Black-Owned Broadcasters and Multicultural Media, Telecom and Internet Council that the FCC incubator program’s comparable markets provisions were unreasonable. “We do, however, agree with the last group of petitioners, who argue that the Commission did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities,” said Judge Thomas Ambro, writing for the majority. The FCC’s “analysis is so insubstantial that we cannot say it provides a reliable foundation for the Commission’s conclusions. Accordingly, we vacate and remand the bulk of its actions in this area over the last three years,” the court said. The court also rejected a request from public interest groups that a special master be appointed to oversee the remand process. Judge Anthony Scirica concurred in part and dissented in part from the majority opinion. Judge Julio Fuentes was the panel's third judge.