A Unanimous Knockout on Media Rules The Supreme Court embarrasses a pair of Third Circuit judges.
https://www.wsj.com/articles/a-unanimous-knockout-on-media-rules-11617316109?mod=opinion_lead_pos4
Local newspapers and broadcasters have struggled, or worse, as cable and social media become more dominant. But they received some good news Thursday as the Supreme Court unanimously upheld the Federal Communications Commission’s rules letting local media consolidate to compete with bigger players.
The FCC has broad statutory power to regulate broadcast media “as public convenience, interest, or necessity requires.” In the 1960s and ’70s, the agency issued three rules limiting cross-ownership of newspapers, broadcast TV and radio. The intent was to prevent one company from dominating the local news market. This sounds silly today given the digital media dominance and cross-ownership of Big Tech. Nothing prevents Apple from owning news and podcast platforms.
Fortunately, as media markets evolved, Congress in 1996 directed the FCC to review its media ownership rules every four years and repeal or modify those that no longer serve the public interest. The FCC has made several attempts over two decades—most recently in 2017—yet each time has been blocked by Judges Thomas Ambro and Julio Fuentes on the Third Circuit Court of Appeals. The judges last ruled in 2019 that the FCC’s rule didn’t adequately consider harm to minority and female ownership.
But as Justice Brett Kavanaugh explains for the Court in FCC v. Prometheus Radio Project, the Third Circuit decision was itself arbitrary and capricious. Despite soliciting public comment on minority and female ownership, the FCC “had received no countervailing evidence suggesting that changing the three ownership rules was likely to harm minority and female ownership.” He adds that the Administrative Procedure Act imposes “no general obligation on agencies to conduct or commission their own empirical or statistical studies.”
Justice Clarence Thomas points out in a concurrence that Congress didn’t require the FCC to consider minority and female ownership. The Third Circuit judges thus had no authority to require it to do so. Congress’s broad delegation to the FCC to regulate local media markets to promote whatever the agency views as the “public interest” deserves judicial scrutiny. But for now the 9-0 decision is an embarrassing rebuke to the plaintiffs and errant judges who couldn’t get a single Justice on their side.
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