NETWORKS PETITION FOR EN BANC REHEARING ON OWNERSHIP VENUE
The Fox, NBC/Telemundo and Viacom/CBS TV networks have petitioned the 3rd U.S. Appeals Court, Philadelphia, for an en banc rehearing to argue again that legal challenges to the FCC’s new media ownership rules should be heard by the U.S. Appeals Court, D.C. Having lost on a motion to transfer the case in a 2-1 ruling by a 3-judge Philadelphia panel last week (CD Sept 17 p5), the networks asked for a full complement of the judges to hear their case this time around. They argued that “a long and unbroken line of cases holds that… an appeal from an order on remand must be transferred to the remanding court.” Since the FCC’s new rules were a byproduct of 2 previous D.C. Circuit decisions, the networks contend, the latest challenges belong in D.C.
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Pointing to Fox v. FCC and Sinclair v. FCC, the networks said the Commission was acting on directions it received from the D.C. Circuit when it issued its new rules. When appeals are filed in more than one court, a lottery determines the venue and at that point the selected court may transfer the consolidated cases to any other circuit “for the convenience of the parties in the interest of justice.” However, 2 of the 3 judges who heard the networks’ motion for transfer said the D.C. Circuit had no special expertise in these matters and the same judges who heard the previous cases might not hear this one. The Philadelphia judges decided to keep the case, much to the chagrin of the networks and the FCC, which again is supporting the networks as they try to get the case transferred.
The networks said consumer groups that filed outside D.C. were “apparently acting in concert to avoid a venue they viewed as substantively inhospitable.” Those groups say they have the right to file wherever they wish. The networks said the lottery was meant to decide only in which venue the case would start, not where it ultimately would be heard. They also argued: “Whether this court should be the first court of appeals to repudiate the doctrine that decisions on remand should be reviewed by the remanding court constitutes a question of exceptional importance on which this court should pass en banc.”
The Philadelphia panel said in its decision last week that the cases the networks cited involve only 2 rules and the new cases involve a total of 6 rules that had broader implications on media ownership.
The Media Access Project (MAP), which represents the “citizen petitioners” who are opposing the FCC and networks in this case, wrote a brief letter to the Philadelphia court, saying that if the court wanted a formal response to the networks’ petition, it would supply one. “They're making the same argument all over again,” MAP Pres. Andrew Schwartzman said of the networks’ action.