D.C. was buzzing Wednesday after the U.S. Court of Appeal for the Third Circuit vacated the FCC's JSA attribution rule change, upbraided it for not completing its 2010 and 2014 congressionally mandated quadrennial media-ownership reviews, and told it to come up with a definition of "designated entities" -- key to promoting diverse ownership without running afoul of affirmative action court decisions.
One of those doing the congressional mandating, Rep. Greg Walden (R-Ore.), chairman of the House Communications Subcommittee and no fan of the FCC's JSA decision, was a big fan of the court decision, "excoriating" (his term) the commission in the wake of the court smackdown.
“This is yet another unsurprising chapter in the FCC’s miserable history on the media ownership rules," Walden said in a statement. "We have warned the Commission repeatedly over the past three Congresses that it cannot shirk its statutory responsibility and it cannot cut corners on good process."
The court did not actually weigh in on the rule, but said the FCC erred procedurally in tightening it before reviewing the underlying rule and determining whether it was in the public interest.
"Today, the court correctly points out that the FCC’s failure to address the media ownership rules in the quadrennial review, which at this point is 10 years late, is fatal to its actions on joint sales agreements," Walden said. "In other words, the FCC can’t put the cart before the horse, in addition to its many other process failures. These failures have real world consequences, taking a particular toll on minority broadcasters and minority media creators, who are already struggling mightily to survive."
One of the lead challengers of the JSA rule was Armstrong Williams, whose Howard Stirk Holdings is the largest African American-owned TV station group in the country.
"It is a sad statement on FCC leadership that the agency must be taken to court in order to force it to comply with the plain reading of its statute," Walden said. "[T]his entire process was an unnecessary waste of time and money, and taxpayers are footing the bill. This committee will continue its longstanding effort to work on reforming FCC processes and force the FCC to address the years of compounded bad habits that have made it an institution that sees itself as above the law. Instead of tilting after windmills on ISP privacy and other headline-grabbing issues du jour, the FCC should do the work that Congress has assigned.”
Berin Szóka, president of TechFreedom, said: “Today’s decision was a well-deserved rebuke for the FCC. The FCC has never been well grounded in reality, under Democrats or Republicans, but the problem has grown far, far worse under Tom Wheeler — and the FCC’s outdated regulations have become more and more destructive as the Internet continues to transform the media marketplace.”
The Multicultural Media, Telecom and Internet Council was praising the court's directive that the FCC act on MMTC proposals to boost minority ownership and to work out with petitioners a timetable for coming up with a definition of "eligible entity," or else.
“Justice delayed is not justice denied," said MMTC president and CEO Kim Keenan. "After 12 years of FCC delay, at last a definition that would advance minority broadcast ownership appears to be within reach."
The court gave the FCC 60 days to come up with the timetable for defining the term or it would impose one.
"We are encouraged that the Third Circuit wants to give relief to multicultural owners in the near future rather than some distant, unknown future," said Keenan. "MMTC looks forward to working with the FCC to develop a timeline within the court-ordered 60-day timeframe to make sure that the long-awaited studies are completed."
Free Press policy director Matt Wood said, “The court’s procedural rejection of the JSA interpretation is distressing, to put it mildly, because it will allow further consolidation and homogenization of local news and programming. But while the FCC’s JSA interpretation was a net positive step, it was just a partial solution to much larger problems. The FCC needs to finish the comprehensive studies it has just started in this area, and then it needs to launch a comprehensive review of its ownership rules to meet the challenges diverse owners still face.”
Commissioner Ajit Pai praised the court decision as well, saying it was "yet more evidence that the FCC is now an agency unmoored from the rule of law."
Karr signaled his group's unusual support for Pai. While he said Pai ws wrong and foolish to claim the FCC is "always acting outside the law these days," Karr added: "[I]n this instance the FCC has indeed been derelict in its duties to promote broadcast diversity, competition and localism in conjunction with the agency’s congressionally mandated quadrennial review. The result has been a decade or more of delay in the FCC’s mere comprehension of the problem — let alone its ability to take effective steps to combat it — as broadcast ownership levels for women and people of color languish at appallingly low levels. So there is a kernel of truth in Commissioner Pai’s statement that piecemeal attempts to solve this problem are bound to fail."