Time to Toss Scarcity Doctrine, Media Companies Tell Supreme Court
Media companies attacked the “scarcity doctrine” of broadcast media regulation in petitions for certiorari filed with the U.S. Supreme Court this week. The companies are seeking to overturn several media ownership limits, including a ban on owning newspapers and broadcast assets in the same market and consolidating radio and TV licenses in a single market, in asking the court to hear an appeal of a 3rd U.S. Circuit Court of Appeals, Philadelphia, decision remanding to the FCC some rule changes that would have relaxed ownership restrictions (CD Aug 24 p3). Meanwhile, a petition for certiorari from the NAB avoided mentioning the scarcity doctrine but asked the high court to take the case because of a split among lower courts on the ownership rules.
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"Because the scarcity doctrine has been enshrined in a decision of this Court, however, only this Court -- not the lower courts or the FCC -- can correct course,” said Tribune, Fox TV Stations, Sinclair, Bonneville, The Scranton Times, Morris Communications, Clear Channel and the Newspaper Association of America in a joint Supreme Court petition. And the three conditions the Supreme Court identified that would trigger another look at the scarcity doctrine have been met, the companies said. There are more alternative communications channels, the Congress and FCC have signaled they're ready to change some broadcast regulations, and the FCC has identified an example of the lower court’s application of the doctrine as “reducing rather than enhancing the volume and quality of coverage,” they said. They argued it’s time to overturn the doctrine, which came out of the court’s Red Lion v. FCC decision.
Media General also attacked the scarcity doctrine in its petition for certiorari. Overruling the high court’s 1978 decision in National Citizens Committee for Broadcasting v. FCC would force the FCC to justify “its broadcast ownership restrictions under the same standard applicable to similar restrictions in other contexts: instead of merely showing that the restrictions are rationally related to a legitimate government interest, the Commission would have to show that they are narrowly tailored to a compelling government interest.”
The case is caught in a “loop between an FCC that has sought to relax broadcast ownership restrictions and a Third Circuit panel that openly rejects the deregulatory purposes of the 1996 Act,” Media General said. “At the very least, this Court should hold the petition pending its resolution of FCC v. Fox TV Stations … which also involves the ongoing vitality of the scarcity doctrine and dispose of the petition in light of its resolution of that case."
The high court’s guidance is needed to sort out diverging opinions from lower circuits, the NAB said in its petition. “Moreover, because the Third Circuit’s rule will govern the television industry nationwide at least until the completion of the next quadrennial review, the Third Circuit has, in effect, overruled the D.C. Circuit, which is the prerogative solely of this Court,” the NAB said.