Media Ownership Lands on The Supreme Court Steps This Week

This week, the Court considered whether to hear an appeal by the FCC and National Association of Broadcasters seeking to reinstate several updates to the ownership rules. Ultimately, the Court agreed to hear appeals brought by the FCC and the NAB, which are seeking to overturn an appeals court decision that blocked several media ownership rule changes from taking effect. For more on those developments, see here.

 The case is pinned on a 3-2 vote in Nov. 2018 when the FCC decided to abolish the newspaper-broadcast and radio-TV cross-ownership rules, rework the radio AM-FM sub cap regulations, and relax television ownership restrictions.

Public interest groups challenged the moves and, in a 2-1 decision, the Third Circuit concluded the agency had not adequately analyzed the potential effect of the regulatory changes on female and minority ownership of broadcast stations. In their appeals to the Supreme Court, the FCC and NAB said the court’s decisions have frozen in place decades-old ownership restrictions that have long outlived their competitive usefulness in light of dramatic upheavals in the media markets. 

President Trump over the weekend nominated Amy Coney Barrett to fill the Ginsburg vacancy and Senate Republicans have pledged to confirm her before Election Day. Even if that timeline slides, Pillsbury partner Scott Flick thinks nine justices could ultimately decide the media ownership case.

“We are still some time away from the case being argued before the Court. As a result, there is a good chance a new justice will have been confirmed by then,” said Flick. “The immediate effect of that is it reduces the likelihood of the Third Circuit’s decision remaining in place because of a four-four split.” If there is a tie vote, it leaves the lower court decision in place.

“To the extent the Third Circuit’s decision blocks ownership deregulation on the theory that the FCC needs to give greater consideration as to how those rule changes would affect media diversity,” said Flick. “Many would argue that the likelihood of the FCC’s appeal succeeding increases if a justice aligned with conservative views is confirmed.” Still he said it will depend on Barrett’s views on media ownership. And it’s a position that broadcasters won’t know until a ruling is in their hands, since it is unlikely media ownership will be one of the issues that come up during a Senate confirmation hearing.

Read the full story here.