MOVE TO PHILADELPHIA STIRS DEBATE ON FCC MEDIA OWNERSHIP RULES
With the decision by the 3rd Appeals Court, Philadelphia, to keep the media ownership case rather than transfer it to the D.C. Circuit (CD Sept 16 p8), parties are questioning the ideological leanings of Pa. panel. Media Access Project (MAP), representing petitioners Prometheus Radio Project, Media Alliance and the National Council of Churches, wanted the case out of the D.C. Circuit, which has ruled against them repeatedly in the past.
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MAP Pres. Andrew Schwartzman said he thought the 3rd Circuit had “a good perspective” for this type of case. “They [3rd Circuit judges] have an ability to look at the case before them, and I think the D.C. Circuit tends to bring in a lot of preconception from a lot of unrelated cases,” he said. Asked about the 3rd Circuit’s ideological leanings, Schwartzman said he saw it as a “middle-of-the-road” court, saying ideology doesn’t always break down into liberal and conservative.
An FCC spokesman declined to comment, but sources at the agency said they didn’t think the 3rd Circuit necessarily would be any more sympathetic to the petitioners’ case than the D.C. Circuit. FCC attorneys have said they believe MAP was court-shopping when it filed to the Philadelphia court, and that opinion apparently hasn’t changed. The petition to transfer the case was brought by Fox, NBC/Telemundo and Viacom, which owns CBS, with the FCC, Media General and Sinclair filing briefs in support. An attorney who argued on behalf of the networks referred all questions to network representatives. Viacom declined to comment, an NBC/Telemundo spokeswoman said executives weren’t available for comment and Fox didn’t return a telephone message on the case.
Schwartzman said he thought some judges, in general, were more skeptical of govt. than others. Blair Levin told clients in a memo that he saw the decision as a “negative for broadcasters, as the D.C. Circuit has been very predictable in terms of its rulings favoring greater media ownership deregulation.” Levin also said 3rd Circuit judges hadn’t dealt with these issues to the same degree, “so they are both more unpredictable and more likely to be skeptical of the FCC’s deregulatory decision.”
The location ruling may offer a window into the judges’ thinking. The ruling was 2-1, with Judge Julio Fuentes writing for himself and Judge Thomas Ambro and Chief Judge Anthony Scirica dissented. Fuentes wrote that while the FCC argued that the case was a byproduct of earlier cases ruled on by the D.C. Circuit, this proceeding involves rules in addition to the ones considered in D.C., that the D.C. court’s remand order was “not the complicated sort that would require special expertise from future reviewing courts” and “this court is no less qualified than any other.” He said even if the case were transferred back to D.C., that didn’t necessarily mean the same judges who heard the original case would hear this one. “If Congress had meant to give the D.C. Circuit Court exclusive jurisdiction over such appeals, it would have explicitly done so,” Fuentes wrote. Scirica wrote that sound judicial administration and consistency favored transferring the case, and inconsistent decisions “may cause inter-circuit tension.” Inconsistency also would leave the FCC “in the unenviable position of rewriting rules in accordance with 2 potentially divergent directives,” he wrote.
The court set an expedited briefing schedule, with briefs by MAP and other challengers to the FCC’s rules due Sept. 30, the FCC brief Oct. 15 and challengers’ response Oct. 22. The intervenors must file on the same day as the side they support. The court scheduled oral argument for Nov. 5.