Clarence Thomas on FCC Rule Rewrite: Third Circuit Reversal Warranted
The November 2017 “modernization” of the FCC’s cross-ownership media rules and erasure of the “eight voices test” for TV — a move that also saw the end of the television JSA attribution role — was officially given the green light in a 9-0 Supreme Court ruling released April 1.
In the 20-page opinion is a separate note, appearing following the Opinion of the Court penned by Associate Justice Brett Kavanaugh, is a concurring opinion from Justice Clarence Thomas.
Thomas was compelled to note “another, independent reason why reversal” of the Third Circuit’s remand order, is warranted.
In his view, the Third Circuit improperly imposed nonstatutory procedural requirements on the Commission “by forcing it to consider ownership diversity in the first place.”
After noting that the Court “correctly holds” that the FCC’s orders weren’t “arbitrary and capricious,” and that the Commission “reasonably concluded that modifying its broadcast ownership rules would not harm minority and female broadcast media ownership, Thomas made it clear that “the FCC had no obligation to consider minority and female ownership” when engaging in its rule rewrite some 3 1/2 years ago.
Why? “Nothing in §202(h) of the Telecommunications Act of 1996 directs the FCC to consider rates of minority and female ownership,” Thomas said. “Nor could any court force the FCC to consider ownership diversity … Courts have no authority to impose ‘judge-made procedures’ on agencies.”
The Third Circuit, as Thomas sees it, disregarded these limits. And, Thomas took issue with the Third Circuit’s consistency in doing so — likely eliciting cheers from now-former Chairman Ajit Pai, former Commissioner Mike O’Rielly, NAB senior leadership and industry leaders including Gray Television head Hilton Howell Jr.
Thomas noted how the court first disregarded its limits some 17 years ago, when it vacated the FCC’s modification of its Local Television Ownership Rule and faulted the FCC for “failing to mention anything about the effect this change would have on potential minority station owners.”
He then noted that the Third Circuit repeated this “error” in 2016.
While the respondents — Prometheus and other public interest groups — attempted to defend the Third Circuit’s ruling by noting that the FCC has previously discussed ownership diversity when considering its ownership rules, “[t]hat argument fails because the FCC’s ownership rules—unlike some of its non-ownership rules—were never designed to
foster ownership diversity.”
Meanwhile, Thomas noted in his concurring opinion that “from its infancy, the FCC has generally focused on consumers, not producers … The FCC kept true to that design when promulgating ownership rules.”
For example, when it created the Newspaper/Broadcast Cross-Ownership Rule at issue here, Thomas continued, “the agency explained that its ‘ownership rules rest on two foundations: the twin goals of diversity of viewpoints and economic competition,’ and that viewpoint diversity is the ‘higher’ policy. To these two consumer-focused goals, the FCC has also added a third: localism. None of these objectives advances demographic diversity of
owners for the sake of owners.”
Yes, Thomas acknowledged that the FCC “has sometimes considered minority and female ownership of broadcast media when discussing ownership rules.”
Yet, “Time after time … it has viewed those forms of diversity not ‘as policy goals in and of themselves, but as proxies for viewpoint diversity.’”
In conclusion, Thomas — and the eight other Supreme Court justices — accomplished what the FCC has struggled to do since George W. Bush was president but couldn’t, because of a Philadelphia court the highest judicial body in the land has just overruled.
“The Third Circuit had no authority to require the FCC to consider minority and female ownership,” Thomas said. “So in future reviews, the FCC is under no obligation to do so.”
