The Supreme Court ruled on very narrow grounds this morning in Federal Communications Commission v. Prometheus Radio Project that the Trump Federal Communications Commission decision on media ownership permissibly allowed broadcast consolidation at the expense of ownership diversity by women and people of color. The Court did not adopt the broadcast industry's arguments that would have bound the agency to an improper reading of the Communications Act or the FCC's own precedent.

Cheryl A. Leanza, co-counsel in the case and the United Church of Christ's media justice ministry's policy advisor said the following:

Although the ruling is disappointing, the Court's decision was very narrow, finding only that the FCC's decision was 'within the zone of reasonableness' because the FCC possessed a sparse record. But the sparse record is the FCC's own fault. Any analysis of this question must rely on the FCC's data and yet the FCC has long permitted broadcast licensees to avoid filing their ownership data with impunity and has never taken steps to remedy the deficiencies.

The good news is the Biden FCC, once it gains a working majority, can quickly get to work building a solid record to promote the public interest standard and media ownership diversity.

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As part of its 60-year-old mission in pursuit of media justice, the UCC's media justice ministry, OC Inc., filed in the Supreme Court today. The case came to the Supreme Court when the Trump Administration and the broadcast industry appealed a UCC victory in federal court last year that blocked the FCC's effort to permit more local television mergers and other media combinations in local communities.  

In last year's victory, in Prometheus Radio Project v. FCC, the federal appellate court in Philadelphia, ruled that the Federal Communications Commission could not permit additional consolidation when it ignored facts in the record showing consolidation would harm ownership rates by women and people of color. The FCC has long decried low ownership diversity numbers but ignored facts in the record showing consolidation harms diversity by putting more television and radio stations into the hands of fewer and fewer owners.

As Cheryl A. Leanza, UCC OC Inc.'s policy advisor and lead litigator in the case in Philadelphia explained last year, "the court found the FCC treated its obligation as less-important than high school math homework and got caught turning in work that, in the court's words, 'would receive a failing grade in any introductory statistics class.'"

The state of ownership diversity is abysmal. Although the FCC's data is flawed and not completely reliable, it gives the best indication we currently have regarding current numbers. In full power television, racial minorities combined own 26 stations out of 1,376 licensed stations, Hispanics own 58 stations, and women own 73. In FM radio, racial minorities own 159 of 6,647 radio stations, Hispanics own 219, and women own 390. In all cases, the share owned by women and people of color is in the single digits, and in the case of most individual categories, such as Asian Americans, control is less than 1 percent. And the FCC data is incomplete, for example in FM radio 19 percent of stations did not report any data at all.

The UCC's history in court against the FCC goes back to the earliest days of the denomination when Rev. Everett C. Parker began his work as the original director of communications and founded OC Inc. He worked with local residents and church members to monitor and hold accountable television stations in the South by monitoring their content and filing challenges to TV station license renewals at the FCC. In those early days, the UCC established the right of audience members—as opposed to competing stations—to file challenges at the FCC when a broadcaster did not serve its local community.

The current case, which is a collaboration among the UCC and other public interest organizations including the Prometheus Radio Project, will determine the rules of the road for future FCC proceedings considering media ownership rules. The current debate has been on-going for 20 years, ever since Congress required the FCC to review its broadcast ownership rules on a regular basis. Each of those proceedings has come before the court in Philadelphia and the FCC has repeatedly failed to comply with its obligations, leading to four cases known as Prometheus I, II, III and IV.

"This case is about when a federal court should carefully scrutinize an agency and when it should grant the agency more deference," said Ms. Leanza, "in this case, the appellate court reviewed the FCC's work and found it failed the bare minimum for a federal agency. The lower court should clearly be upheld."

Oral argument is scheduled for January 19, 2021 via teleconference because of the COVID-19 pandemic. A decision will occur before the end of the Supreme Court's term next June.

Lead counsel on the brief are Ruthanne M. Deutsch and Hyland Hunt of DeutschHunt PLLC. Also on the brief are Cheryl A. Leanza, who advises OC Inc. directly and serves as counsel to OC Inc. and several of the other parties through Best Best & Krieger, LLP and Andrew Jay Schwartzman.

• Supreme Court grants certiorari in FCC v. Prometheus

• Behind the Scenes in Fighting for Media Justice in Court

• Sustaining our Leadership Role, UCC Members Speak out in Federal Court to Stop Media Mergers

• Celebrating Christmas with a Suit for Media Justice

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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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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:

• Behind the Scenes in Fighting for Media Justice in Court
• Sustaining our Leadership Role, UCC Members Speak out in Federal Court to Stop Media Mergers
• Celebrating Christmas with a Suit for Media Justice

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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.  

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.

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