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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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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