Third Circuit Won't Block FCC Broadcast Dereg

Says Prometheus did not meet standard for directed action

The U.S. Court of Appeals for the Third Circuit has denied a petition from Prometheus Radio Project that it effectively stay the FCC's November vote to deregulate local broadcast ownership. The court suggested the jury was still out on the FCC's response to the court's direction on ownership diversity and that Prometheus did not make a case for direct action from the court.

That court denial of the writ request means the FCC's decision to eliminate crossownership rules and loosen other local ownership restrictions goes into effect and could mean that Sinclair Broadcasting can keep more stations in the Tribune deal than under the old rules or if the court had granted the writ of mandamus Prometheus sought.

The Justice Department currently has a Feb. 11 deadline for either blocking the deal of signing off on it, though that could be extended. Sinclair had signaled it was adjusting the stations it would try to keep in the deal based on the loosened regs, and the court decision paves the way for such an adjustment.

"The emergency petition for writ of mandamus is denied as Petitioners have not satisfied the exacting standard for obtaining such relief," the court said (observing that a writ of mandamus "may issue only if the petitioner shows (1) a clear and indisputable abuse of discretion or error of law, (2) a lack of an alternate avenue for adequate relief, and (3) a likelihood of irreparable injury."

Prometheus had argued the FCC's deregulatory moves were undertaken without the vetting of their impact on media ownership diversity that the court had required. The FCC said it had vetted that impact, including proposing an incubator program as part of the decision.

"The Court notes that the exact design of the FCC’s new incubator program is subject to public comment through April 9, 2018," the Third Circuit said.

It directed the FCC to "file a report on or before Aug. 6, 2018, regarding the status of the incubator program."