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Posts in category: "media concentration"

Supreme Court grants Certiorari in FCC v. Prometheus

The Supreme Court granted certiorari in Federal Communications Commission v. Prometheus Radio Project this morning, October 2, 2020.

Cheryl A. Leanza, counsel for Prometheus Radio Project, et al., including the United Church of Christ, OC Inc., issued the following statement:

 

We're confident that on the merits, the Supreme Court will conclude that the Third Circuit properly turned back the Federal Communications Commission's last quadrennial review decision. The FCC blundered on the most basic level--as the Third Circuit found--using a numerical analysis that would fail statistics 101. The FCC continues to hold media ownership diversity as a key priority and yet repeatedly takes action that undermines that goal. The Third Circuit's analysis was fully in accord with settled law.

 

Further, I want to extend our gratitude to Best Best & Krieger, LLP which leant pro bono and professional support in the litigation before the Third Circuit;  Andrew Jay Schwartzman and Angela Campbell, co-counsel; Professor Brian Wolfman of Georgetown University Law Center for his advice; and Ruthanne M. Deutsch and Hyland Hunt of DeutschHunt  PLLC, of who will be counsel of record before the Court.

More background on this case; Prometheus, et al.'s brief in opposition.

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Court Victory for Equity in Communications!

The UCC's media justice ministry, OC Inc., won a great victory for racial and gender equity in communications because U.S. Court of Appeals for the Third Circuit overturned a decision of the Federal Communications Commission's decision permitting radically increased media consolidation for the fourth time.

The court found the FCC ignores impact of the consolidation on ownership by women and people of color.   The UCC's media justice ministry (OC Inc.) was part of a coalition challenging the rules.  The ruling also affirmed that the challengers had "standing" or the legal right to sue the FCC. The standing decision is of particular meaning to the United Church of Christ because ordinary citizens' right to sue the FCC was first established by the UCC in the 1960s.

Cheryl A. Leanza, who is the ministry's policy advisor and also lead counsel on the case said, "The Federal Communications Commission has not learned its lesson, even after almost 20 years of litigation. The law says the FCC must consider how its rules impact ownership by women and people of color. The FCC treated its obligation as less-important than high school math homework and it got caught turning in work that, according to the court, 'would receive a failing grade in any introductory statistics class.'"

Leanza continued, "Not only did the FCC ignore its obligation to diversity, but the Third Circuit opinion upholds the right of public interest organizations and ordinary individuals to sue the FCC. The UCC's legacy in this regard is critically important. And reasoned federal decision-making should not fear court review."  Members of the UCC assisted in this work by writing declarations showing the harm of consolidation.

As a result of this decision, fewer mergers in local TV and radio will occur and the FCC must return to the drawing board on its most recent proposals for even greater consolidation in local media.

For more background on this case, read our previous blog posts:

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Behind the Scenes in Fighting for Media Justice in Court

On June 11, 2019, the UCC's media justice ministry's policy advisor, Cheryl Leanza, argued in federal court against the Federal Communications Commission's new rules that permit significantly more consolidation in radio and television. Ms. Leanza, who is also counsel at the law firm Best, Best & Krieger, argued on behalf of UCC OC Inc. and the other public interest petitioners against the FCC in the U.S. Court of Appeals for the Third Circuit which sits in Philadelphia.  

The public interest organizations' core argument is that the FCC failed to consider whether its decision would harm ownership in broadcasting by women and people of color. The court appeared receptive.

In particular, the court was concerned that the FCC had de-linked the impact of consolidation from race and gender ownership diversity based on a flimsy historical analysis that, among other flaws, used racial minority ownership data but did not include data about women. The judges repeatedly pointed out that the FCC had no data on women.  One judge remarked, "Ten times zero is still zero," and "If we approve this, the headlines will read '3rd Circuit flunks statistics 101.'"

Another important point under debate was the effectiveness of two similarly named but slightly different definitions, called "eligible entities," which the FCC supposedly uses to increase ownership diversity. But the FCC conceded the first version of the definition won't help promote diversity--even after the same court had sent back the definition in the last two rounds of litigation. The second version of the term is part of a program to promote diverse radio ownership, but that program left no policy to promote diversity television ownership. And the data the FCC used to create that definition showed that at least 80 percent of the beneficiaries will not be women or people of color.

 
In addition to the main case about deregulation and race/gender ownership diversity, two other petitioners argued. The Minority and Media Telecommunications Council (MMTC) argued about flaws in the radio incubator program, and a group of television owners (Independent Television Group) asked the court to end the restriction on top-4 TV combinations. 
Listen to a recording of the oral argument. Cheryl’s argument starts around 18:40, and her rebuttal is around 1:14:20.
For more background on this case, read our previous blog posts:

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Celebrating Christmas with a Suit for Media Justice

Today the United Church of Christ's media justice ministry put the week just before Christmas to good use by continuing its long-standing campaign for equity in communications. UCC OC Inc. joined with allies in federal court contesting the Federal Communications Commission's failure to consider the negative impact the FCC's decisions have had on the total number of TV and radio stations owned by people of color and women. In 2017 the Trump FCC changed several rules that will permit significantly more consolidation, particularly in local television markets. Consolidation means fewer voices in local communities and fewer chances to hear from people underrepresented in television.

 

The case, titled Prometheus Radio Project v. FCC, is the fourth law suit since 2002 demonstrating that the FCC has not fulfilled its obligation under law to ensure ownership diversity in broadcasting. The FCC lost all three prior rounds.

 

"The FCC–again–completely failed to lift a finger for people of color and women hoping to own broadcast stations," said Cheryl A. Leanza, OC Inc.'s policy advisor and also lead counsel on the brief. "The federal court in Philadelphia has told the FCC three times that it must take a hard look at how consolidation might harm ownership by women and people of color. The FCC continues to whistle in the dark but take no action."

 

UCC OC Inc. is pleased to work alongside its valuable allies, Common Cause, Communication Workers of America, Free Press, Media Mobilizing Project and Prometheus Radio Project in this important campaign for racial and gender justice in communications.

 

Additional filings will be submitted to the court in February and March. Oral argument is anticipated in Philadelphia in the spring. Best Best & Krieger LLP offered pro bono support on the brief.

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Pressure to Stop Tribune-Sinclair Merger Bears Fruit

Today Federal Communications Commission Chairman Pai announced that he is proposing to designate for hearing several issues surrounding the Sinclair-Tribune proposed merger. Mr. Pai stated he was doing so because "certain station divestitures that have been proposed to the FCC would allow Sinclair to control those stations in practice, even if not in name, in violation of the law." Commissioner Rosenworcel rapidly signaled her support.

 

Cheryl A. Leanza, UCC OC Inc.'s policy advisor stated, "The Commission's proposed action is appropriate, as UCC's media justice ministry has pointed out from the beginning, because this transaction deserves serious scrutiny. This is good news for anyone who values competition and multiple viewpoints in news and on television."

 

Typically, designating a proposed merger for hearing means the transaction is withdrawn, and UCC OC Inc. hopes the same action follows today's announcement. Leanza noted, "All of the merger's opponents deserve recognition for their steadfast opposition to a merger that was previously believed to be inevitable."

 

Leanza continued, "While we celebrate the likely end to the Sinclair-Tribune transaction, the FCC has taken steps in the last year to invite this kind of abuse of its rules by repealing previous policies that prohibit stations from, as the Chairman said, 'control[ling] stations in practice, even if not in name, in violation of the law.'" In particular, under Chairman Pai, the FCC adopted two decisions that treat stations as independent from each other even if they jointly sell advertising time or jointly produce news (to name two examples). The FCC should quickly stop allowing companies to end-run around its rules as Sinclair proposed to do. And Congress should follow suit, by ending its requirement that the FC grandfather existing combinations of this type until 2025.

 

UCC OC Inc. filings against Sinclair:

Petition to Deny (August 8, 2017)

Petition to Deny (filed June 20, 2018)

Letter supporting delay in Sinclair transaction (filed July 9, 2018)

Reply to Sinclair Tribune (filed July 12, 2018)


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