FCC Basis for Media Ownership Changes Seen Difficult to Challenge
That the FCC isn't seeking new comments ahead of the vote on its draft media ownership order on reconsideration is unlikely to present a problem in approving the rules or defending them in court, supporters and opponents of the proposed changes (see 1710260049) told us. The agency received public input on the original 2014 quadrennial review order and on the petition for reconsideration that's the basis for the draft recon order, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman. The agency can make rules based on that record, said Schwartzman, who's involved in litigation against FCC ownership rules. Demonstrating a basis for the rule changes and that they represent a logical outgrowth from the original order and petition for recon likely will be part of the FCC’s defense against a very likely court challenge, said an official formerly in the Office of General Counsel.
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The draft order is constructed to stay within the scope of the petitions for reconsideration filed by NAB, Nexstar and Connoisseur Media, and that makes the road harder for arguments that it lacks transparency, said Multicultural Media, Telecom and Internet Council President Emeritus David Honig. A senior FCC official said in a news-media call last week on condition of not being named nor being quoted directly that the order was intentionally limited to the recon petitions, leaving other media ownership changes the agency is mulling to later proceedings. That should help insulate the order from challenges based on a lack of prior notice, the former OGC official said. The agency didn’t comment.
The FCC’s policy of releasing item drafts ahead of rulemakings also increased transparency, Honig said. That also could be used in defense against arguments that the media ownership process hasn’t been transparent enough, he said.
Arguing there was insufficient notice would be particularly tough in the media ownership proceeding because there has been such a long and robust record, said Fletcher Heald appellate attorney Harry Cole. “This is such a big proceeding with such a massive record, any position you choose to advocate is backed up." Speaking in general, Schwartzman said to challenge on a lack of sufficient notice, opponents have to be able to show actions are a significant departure from what was presaged in preceding orders.
Public interest groups said they may challenge the rulemaking for having an insufficient basis. It's an argument the 3rd U.S. Circuit Court of Appeals -- widely expected to hear the eventual court case -- has responded well to in previous media ownership cases, attorneys said. Courts have taken different stances on whether a change in political leadership is enough of a reason to change a rule with no other new facts, the former OGC official said. They tend to defer to FCC judgment of whether there’s sufficient basis for a rulemaking, the official said. The last 3rd Circuit ruling indicated impatience with the FCC, Cole said. The agency could find itself facing a “pissed off” judicial panel, Cole said. He cited a recent D.C. Circuit ruling chiding the FCC over taking too long to rule on multilingual emergency alert system rules (see 1710170036) as evidence the judiciary perceives the commission as “dragging its feet” on some issues.