Prometheus Respondents Focus on Administrative Law in SCOTUS Brief

The FCC under Chairman Ajit Pai violated administrative procedure requirements when it used the same record as evidence for a 2017 reconsideration order loosening ownership rules that the prior commission had used to justify keeping them, said the public interest group respondents in a brief filed Wednesday in the broadcasters' and FCC's Supreme Court appeal of Prometheus IV (see 2011170057). The FCC “first concluded that largely retaining local rules was necessary for the public interest,” said groups including Prometheus Radio Project, Common Cause and the National Association of Black Owned Broadcasters. “One year later, upon reconsideration of the same record after a change in Commissioners, the Commission reversed course.” The brief countered broadcaster and FCC arguments that the 3rd U.S. Circuit Court of Appeals’ retention of jurisdiction has stalled broadcast deregulation for years. “Any purported ‘freezing’ of ownership rules is the Commission’s doing, not the Third Circuit’s,” the document said. "The Commission itself re-adopted most of its rules in 2008 and 2016. The Commission (until now) declined to repeal the newspaper/broadcast cross-ownership rule entirely, and the Commission took nearly ten years between this 'quadrennial' review and the last one." The respondents’ argument “isn’t so much about diversity as about the basic tenets of administrative law,” said University of Minnesota assistant professor-media law Christopher Terry. He said it’s hard to tell how the justices, some of whom seem focused on the question of judicial deference to federal agencies, will react. "The appellate court reviewed the FCC's work and found it failed the bare minimum for a federal agency,” said United Church of Christ Office of Communication attorney Cheryl Leanza on the office's website: “The lower court should clearly be upheld." The 3rd Circuit “rejected bad FCC media ownership rule changes four times because each time the agency ignored the Court’s demand for evidence and a reasoned explanation,” said former Commissioner Michael Copps, now special adviser to Common Cause, in a release. The FCC didn’t comment. Oral argument is Jan. 19.