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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Today we stand with our civil rights colleagues, our siblings of color and all people in a national day of mourning for the toll our government has inflicted on African-Americans. We urge you to take time today to mourn, to grieve and to rededicate yourself to anti-racism and to justice. We are rededicating ourselves to the work of communications rights and media justice as part of our work to a just society.

The events of this week and last combine the power of the media, technology and the power of prayer and the anguish of people who see and know that their voices are not being heard. As our colleagues in the United Church of Christ in Minnesota reminded us, Rev. Martin Luther King, Jr. said: “A riot is the language of the unheard.” Media justice and communications rights are about the language of the unheard. Our country started to learn these lessons when in the 1960s we faced riots in the streets of African-American communities, and the Presidential Kerner Commission concluded that racism and segregation in the media was part of the problem leading to that unrest.

Now, as then, media can show us the current manifestations of centuries of structural racism, pressing down our family members, friends and colleagues because of the color of their skin. Now, as then, media can be both the problem and the solution. Social media can reveal to us the horrible actions of police officers killing African Americans without provocation. It can allow us to organize and support each other, to find solutions and human connection even when a pandemic requires us to be physically apart. But traditional and social media can inflame hate and vitriol, turning ignorance, anger and fear into violence with the power of a lighted match on dry tinder.

Now, as then, media can be both the problem and the solution.

The power of prayer can hold our Black and Brown brothers and sisters in our hearts and see their pain, it can bring everyone the strength to work together for a better world. And yet faith can be used as an excuse to maim, harm, dehumanize others.

We have seen the President go after social media companies for following their own freely-adopted policies against violent and dehumanizing language. We have seen peaceful protesters attacked in front of a church for a photo-op. We join with the national setting of the United Church of Christ in condemning the modern lynching of Black people — carried out today with guns and choke holds by employees of the state.

In these moments it is easy to break apart, shut down and give up. And as Rev. William J. Barber III said last Sunday, “We cannot try to hurry up and put the screams and the tears and the hurt back in the bottle, just to get back to some normal that was abnormal in the first place. Hear the screams. Feel the tears. The very people rejected over and over again are the ones who have shown us the possibility of a more perfect nation. They are telling us these wounds are too much. This death is too much.” We must stop and hear our siblings crying and gasping for breath. We must take time to nurse our wounded souls, reach out in support. We must use our communications tools to see each other and hear each other and tell the stories of the people we have lost.

Today is a day to mourn. And tomorrow we must take up our tools, our stories, our words and get back to work to bring about the justice that we know, one day, we can make real.

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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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Friday April 12, UCC OC Inc. continued its effort to block federal rules that are permitting vastly increased consolidation in television, radio and newspapers in local communities. Following up on its opening brief, filed last December, UCC OC Inc. and its allies filed their response to the Federal Communications Commission and industry briefs which defend consolidation. 

The question of legal "standing" is an important issue at this stage of the case. In order to bring a lawsuit, a person or an organization must have standing, that is, must demonstrate that they have been, or will be, harmed by the actions they are challenging. The UCC has a special connection to legal standing, as OC Inc.'s groundbreaking lawsuits in the 1960s under the leadership of Rev. Everett Parker, established the right of viewers and listeners to participate at the FCC and in court. Today, the doctrine of standing has been narrowed over the years by the courts, raising barriers to participation. Without standing, ordinary people and public interest organizations cannot legally protect the rights of viewers, listeners and independent content creators.

In the case of the current suit, UCC OC Inc. showed that the church has standing--through harm to its members and harm to its own work caused by the federal rule changes. To do this, UCC OC Inc. relied on declarations of a proud UCC member and its board chair. OC Inc. is very grateful to Tony Miller, of St. John's UCC in Chambersburg, PA, near Harrisburg. His declaration showed that if local TV news is degraded, he might have trouble protecting the earth by tracking the permit approval process of a local powerline proposal. He would also have less information about his home community of Shippensburg, PA, and would receive even less information about local efforts to protect LGBTQ rights or local primary elections. UCC OC Inc.'s board chair, Earl Williams, Jr., member of South Euclid UCC in Cleveland, explained that the church's work as a whole is harmed by media mergers and the lack of representation in media and news. Citing the General Synod resolutions on Anti-Racism in the Church, Williams explained that when members of the church do not receive sufficient information from local media, the UCC "must work harder to educate our members about the history of race in the United States, the impact of structural racism, and the present-day incarnations of that racism."

Ravi Kapur, winner of OC Inc.'s 2017 McGannon Award and member of Free Press (one of the other participants in the suit) described the impact of consolidation on his efforts, as an entrepreneur of South Asian descent, to serve underserved communities. He owns TV stations in Chicago, San Francisco, and Orlando and in Fargo, ND and owns Diya TV, the first 24-hour U.S. broadcast network serving the South Asian audience, broadcasting to more than 70 million people in a dozen markets nationwide. Kapur described the challenges of expanding his company and successfully serving communities in given widespread media consolidation. He highlighted the innovation creative station owners can bring, explaining his TV station in Fargo "produces more local programming than every other television station in North Dakota combined" and his new efforts to create a new stream of Native American programming there.

These UCC members and allies are helping to push back rules that will permit more consolidation in local media. If these rules had not been changed, mergers like the mega-merger proposed by Sinclair Broadcasting or the Nexstar takeover of Tribune would not be possible. Studies show that people still rely tremendously on local TV news--even people who read their news on the Internet rely on local TV journalism, especially at the current time when so many local newspapers are failing.

Your support of OC Inc.'s work makes this effort possible.

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