Briefing Concludes in SCOTUS Prometheus Radio Project Case

Two reply briefs have been filed in a lawsuit concerning whether the Federal Communications Commission (FCC) properly considered the impact of its media ownership rules on women and minority owners. The case, accepted by the Supreme Court in April, was characterized by the FCC as a challenge to the judicial override of its attempts to loosen ownership restrictions no longer necessary in light of major changes to the media industry.

The FCC and the industry petitioners, a collection of television and radio broadcast corporations and trade associations, countered statutory interpretation and Administrative Procedure Act (APA) arguments made by the respondents, media and diversity advocacy groups and an industry labor union, in a pair of briefs filed Jan 8.

The FCC wrote in its reply brief that the respondents support the Third Circuit’s decision to vacate the rules “solely on the ground that the Commission had not adequately assessed their anticipated effects on ownership by minorities and women.” Yet, the FCC contended, the court’s decision was unwarranted in view of the fact that “(a)lthough the FCC has traditionally treated (and continues to treat) minority and female ownership as a relevant criterion in its assessment of the public interest, neither the governing statute nor the Commission accords that factor controlling weight.” Instead, the FCC argued that its rules comply with the statutory mandate and were well within its “broad discretion” to regulate media ownership, as the industry petitioners’ brief reiterated.

The FCC further claimed that the respondents’ “microscopic critique” of the rule’s statistical analysis did not equate to the alleged fact that the FCC failed adequately to consider minority and female ownership. The Third Circuit substituted its judgment for that of the agency’s in overturning the rule, the FCC explained. The remedy was also overbroad because the court failed to substantiate its finding that the relevant FCC rule was arbitrary and capricious in violation of the APA, the agency’s brief contended.

Oral argument is scheduled for Jan. 19.

The FCC is represented by the acting solicitor general, and the industry petitioners by Wiley Rein LLP, Gibson Dunn & Crutcher LLP, Wilkinson Barker Knauer LLP, Lerman Senter PLLC, Pillsbury Winthrop Shaw Pittman LLP, and Covington & Burling LLP. The respondents are represented by Deutsch Hunt PLLC, Best Best & Krieger LLP, and the organizations’ own counsel.